This article provides a detailed overview of the Bharatiya Sakshya Adhiniyam, 2023, India's recently enacted legislation governing the admissibility of evidence in court proceedings. It explains the Act's key concepts, including facts, relevance, hearsay, different types of evidence, dying declarations, estoppel, burden of proof, and confessions. The article highlights the importance of the BSA in ensuring fair and efficient administration of justice in both civil and criminal cases.

Introduction
The Bharatiya Sakshya Adhiniyam is a crucial piece of legislation that governs the admissibility of evidence in Indian courts. It is an updated form of recent Indian Evidence Act, 1872.It provides a comprehensive framework for determining what evidence is relevant, reliable, and can be presented in a legal proceeding. It plays a crucial role in both civil and criminal proceedings, ensuring that justice is administered fairly and efficiently.

Facts under Bharatiya Shakshya Adhiniyam

The Bharatiya Sakshya Adhiniyam, 2023 defines 'fact' broadly as "anything which is capable of being proved or disproved". This includes not only physical events or occurrences but also mental states, opinions, and beliefs. According to section 2 of the BSA (Formerly Section 3 of IEA, 1872), facts mean and include:

• Anything capable of being perceived by the senses: This covers anything that can be seen, heard, touched, tasted, or smelled. For example, the color of a car involved in an accident is a fact.
• Any mental condition: This refers to any state of mind, such as intentions, motives, or knowledge. For example, the intention to commit a crime is considered a fact.

Relevancy of Facts

The BSA, 2023, serves as a foundational legal framework governing the admissibility and relevance of evidence in judicial proceedings in India. The Act defines key terms and establishes criteria for determining what constitutes a fact and its relevance in legal contexts. Part II (Sections 3-50) of the BSA, 2023 (formerly Sections 5-55 of the IEA, 1872), addresses the relevance of facts. The principle of relevancy is based on logical connection. Facts are relevant when they are:

• Connected with the fact in issue
• Part of the same transaction
• Establish cause and effect relationship

Key Principles of Relevancy:

• Facts must be logically connected to the matter at hand
• The connection must be direct and immediate
• Facts must have probative value

When Irrelevant Facts Become Relevant

Facts that are part of the same transaction (Res Gestae) (Section 6)
Even if a fact appears irrelevant on its own, if it is connected to the event in question, it becomes relevant. Illustration: A witness hears a gunshot and sees a person running away. While the act of running away may initially seem irrelevant, in the context of the shooting, it becomes relevant. In a landmark case the court held that a statement made by a victim, immediately before her death, about her assailant was relevant as it was part of the res gestae.

Motive, Preparation, and Conduct (Section 8):
A person's previous conduct, which may seem irrelevant at first, can become relevant if it demonstrates motive or preparation for a crime. Illustration: If a person is seen purchasing poison a few days before the poisoning of someone, this act becomes relevant as evidence of preparation. In the case of Nishi Kant Jha v. State of Bihar (1969) the Supreme Court held that conduct showing motive or prior preparation was relevant in the murder case.

Facts necessary to explain or introduce relevant facts (Section 9)
Irrelevant facts may become relevant if they help to explain a relevant fact. Illustration: In a case of an accident, evidence that a person was speeding just before the accident becomes relevant to explain the cause of the accident. In the case of Pramatha Nath v. State of W.B. (1969) the court ruled that certain surrounding circumstances which appeared irrelevant helped to explain the fact in issue, thus becoming relevant.

Inconsistent Facts (Section 11)
Facts that are inconsistent with any relevant fact or fact in issue may become relevant if they help to contradict the evidence. Illustration: In a case where a person is accused of being at the crime scene, evidence that he was elsewhere at the time (alibi) becomes relevant. In the case of State of UP v. Shyam Bihari (1957) The Supreme Court recognized that facts inconsistent with the prosecution's case (such as an alibi) become relevant to disprove their theory.

Evidence under BSA
Evidence is any material that is presented to a court of law to prove or disprove a fact. It can be in the form of oral testimony, documents, objects, or other forms of information. Evidence is crucial to both substantive and procedural law.

In substantive law, evidence is used to establish the facts necessary to prove or disprove the elements of a legal claim or defense. For example, in a criminal case, the prosecution must present evidence to prove beyond a reasonable doubt that the defendant committed the crime. In a civil case, the plaintiff must present evidence to prove their claim by a preponderance of the evidence.

In procedural law, evidence is used to determine the admissibility of evidence, the weight to be given to evidence, and the sufficiency of evidence to support a judgment. For example, the rules of evidence determine what types of evidence are admissible in court, how evidence should be presented, and the procedures for challenging the admissibility of evidence.

Hearsay Evidence

Hearsay evidence is a statement made out of court that is offered in court to prove the truth of the matter asserted in the statement. Statement not made directly in court but repeated by a third party. Hearsay evidence is generally inadmissible because it is considered unreliable. However, there are several exceptions to the hearsay rule, such as:

• Declarations against interest: A statement made by a person against their own interest is admissible as an exception to the hearsay rule.
• Dying declarations: A statement made by a person who believes they are about to die is admissible as an exception to the hearsay rule.
• Excited utterances: A statement made by a person while under the stress of excitement caused by a startling event is admissible as an exception to the hearsay rule.

Divisions of Evidence

• Oral Evidence: Statements made by witnesses.
• Documentary Evidence: Documents presented in court.
• Primary Evidence: The original document itself.
• Secondary Evidence: Copies of documents or substitutes of primary evidence.
• Direct Evidence: Evidence that directly proves a fact, such as eyewitness testimony.
• Circumstantial Evidence: Evidence based on inference, like fingerprints at a crime scene.
• Real Evidence: Physical objects like weapons or clothes found at a crime scene.
• Hearsay Evidence: Statements not made in court, generally inadmissible unless an exception applies.

Difference Between Primary and Secondary Evidence:

S.No.	Aspects	Primary Evidence	Secondary Evidence
1	Definition	Original document or material presented directly in court (Section 62).	Copies or substitutes of the original document when the primary cannot be produced (Section 63).
2	Nature	Direct and original, offering the best proof of the content or facts within.	Indirect and supplementary, used when primary evidence is unavailable.
3	Admissibly	Always admissible in court without special conditions.	Admissible only when primary evidence is not available.
4	Examples	Signed original of a contract, original photograph.	Photocopy, certified copy, or scanned image of the original contract.
5	Legal Preference	Preferred due to authenticity and reliability.	Accepted only when primary evidence cannot be produced due to legitimate reasons.

Circumstances When Secondary Evidence is Admissible

Section 65 of the Indian Evidence Act outlines conditions when secondary evidence can be used, including:

• Loss or Destruction of Original Document: If the original is lost or destroyed and cannot be produced, secondary evidence is permitted.
• When Original is with the Opponent: If the document is in possession of the opposing party and they refuse to produce it, secondary evidence is allowed.
• Unobtainable Originals: When it is impossible to produce the original due to legal or practical reasons, such as foreign records.
• Certified Copies of Public Documents: Certified copies of public records are admissible as secondary evidence.
• When Original is Not Easily Movable: In cases where the original cannot be conveniently brought to court (like a bulky item), secondary evidence may be submitted.

Dying Declaration

A dying declaration is a statement made by a person who believes they are about to die, concerning the cause or circumstances of their impending death. A dying declaration is considered an exception to the hearsay rule and is admissible as evidence in court, despite not being made under oath and the declarant being unavailable for cross-examination due to death.

Proving a Dying Declaration

• Belief of Imminent Death: The declarant must have a settled expectation of imminent death. This means they must believe that their death is certain and imminent. Mere apprehension of death is not sufficient.
• Cause of Death: The declaration must relate to the cause or circumstances of the declarant's death. It cannot be a general statement or a statement about unrelated matters.
• Statement by a Deceased Person: It must be the statement of a person who has since passed away.
• Made Voluntarily: The declaration must be made voluntarily, without any coercion or inducement.
• Recorded Accurately: The declaration must be recorded accurately, either in writing or by a reliable person. Ideally, it should be recorded by a magistrate. However, it may also be accepted if recorded by a doctor, police officer, or any witness who was present.

Methods of Proving a Dying Declaration

• Verbal Statements: The witness who heard the dying declaration may testify about it in court.
• Written or Recorded Statements: If recorded by a magistrate or in writing, the document itself is presented as evidence.
• Doctor's Certification: If recorded in the presence of a doctor, certification of the declarant's mental fitness can strengthen its credibility.

Value of a Dying Declaration in Evidence

Dying declarations are considered highly reliable because they are made under the belief of imminent death, which is considered a powerful incentive to tell the truth. However, the value of a dying declaration can vary depending on several factors:

• Clarity and Consistency: A clear and consistent declaration is more reliable than a vague or contradictory one.
• Circumstances of the Declaration: The circumstances under which the declaration was made, such as whether it was made in the presence of others or recorded in writing, can affect its reliability.
• Credibility of the Declarant: The credibility of the declarant, including their general character and reputation, can also impact the weight given to the declaration.

Why Dying Declarations are Considered Weak Evidence

While dying declarations are highly valued, they are still considered weak evidence for a few reasons:

• Lack of Cross-Examination: The declarant is not available for cross-examination, which is a crucial tool for testing the credibility of a witness.
• Potential for Coercion or Suggestion: There is always a risk that the declarant may be influenced or coerced into making false statements.
• Memory and Perception: The declarant may be in a state of shock or pain, which can affect their memory and perception of events.
• Possibility of Error: Human memory is fallible, and there is always a possibility of mistakes or misinterpretations.

Exceptions

If a dying declaration is vague, inconsistent, or appears influenced, courts may reject it or seek corroboration.

Judicial Interpretation and Case Law:

• In Laxman v. State of Maharashtra (2002), the Supreme Court held that a dying declaration is reliable if the victim was in a fit mental state, regardless of whether the statement was recorded by a magistrate or a doctor. This case emphasized that each dying declaration should be evaluated for consistency, clarity, and corroborative evidence.
• Kusa v. State of Orissa (1980): The Supreme Court held that if a dying declaration is consistent, clear, and not influenced by any factors, it can form the sole basis for conviction.
• Ram Nath v. State of MP (1958): The court observed that a dying declaration needs to be free from suspicious circumstances and, if so, holds strong evidentiary value.

Estoppel

Estoppel is a legal principle that prevents a person from denying a fact or asserting a right that contradicts their previous words or actions if that assertion would harm another who relied on the original stance. In the Indian Evidence Act, 1872, estoppel is covered under Sections 115-117. Estoppel plays a crucial role in ensuring fair dealings by preventing inconsistent statements and actions. It's a doctrine designed to prevent unfairness and inconsistency.

Types of Estoppel
Estoppel is categorized into various types based on the nature of the statements, actions, or promises involved. Key types include:

• Estoppel by Representation: If a person makes a representation (by words or conduct) to another, and the other person relies on that representation to their detriment, the person who made the representation cannot later deny it. For example, A tells B that a piece of property belongs to A, and B purchases it based on this representation. Later, A cannot deny B's ownership.
• Estoppel by Conduct: When a person's actions, conduct, or behavior lead another to believe something to be true, they are estopped from denying it. For example, if a landlord accepts rent from someone as a tenant, they cannot later deny the tenant-landlord relationship.
• Promissory Estoppel: This applies when a party makes a promise, knowing that the other party will rely on it, and the other party takes action based on the promise. Even if no formal contract exists, the promisor is estopped from going back on their word. For example, if a company promises to pay a pension to a retired employee, even though it's not in the employment contract, the company may be estopped from denying the promise.
• Equitable Estoppel: This arises when fairness or equity demands that a party be prevented from going back on their word, even if legal requirements are not fully met.
• Estoppel by Deed: If a person makes a statement or promise formally in a deed, they cannot later deny the truth of that statement.
• Estoppel by Record: This form of estoppel applies to judicial decisions. Once a matter has been adjudicated, parties are estopped from re-litigating the same issue.

Necessary Elements of Estoppel

• Representation or Conduct: There must be a clear and unambiguous representation or conduct by one party, either by words, actions, or behavior.
• Reliance: The other party must rely on the representation or conduct, leading them to believe it to be true.
• Change in Position: The relying party must change their position based on the initial representation, often resulting in some form of detriment or loss if estoppel is not enforced.
• Intention or Knowledge: The party making the representation must either intend or know that the other party would rely on it.
• Lack of Knowledge of Truth by the Reliant Party: The person relying on the representation must be unaware of the true state of affairs.

Case Law Illustrations

• Central London Property Trust Ltd. v. High Trees House Ltd. (1947): Known as the "High Trees" case, it established the principle of promissory estoppel. The court held that if a promise was made and relied upon, it could not be retracted if it would cause detriment to the other party.
• Smt. Chandrabhaga v. Ganpatrao (2003): In this case, the Supreme Court of India held that estoppel applied as the party's conduct led the other party to act on the presumption that the property transfer was valid.
• Union of India v. Anglo Afghan Agencies (1968): The Supreme Court of India upheld promissory estoppel against the government, ruling that a promise made in an export policy must be honored.

Burden of Proof

• Burden of proof is a legal concept that refers to the obligation of a party in a legal proceeding to present evidence to support their claim or defense. Covered under Sections 101 to 114 of the Indian Evidence Act, 1872, the burden of proof lies on the party that makes a claim or asserts a fact that needs to be proven in court. This concept essentially determines which party has the responsibility to persuade the court of the truth of a particular fact.
   
• Upon Whom Does the Burden of Proof Lie? Typically, the burden of proof lies with the party who initiates the legal action. In a civil case, this would be the plaintiff, and in a criminal case, it would be the prosecution. Section 101 of the Indian Evidence Act states that the person who desires a court to give judgment as to any legal right or liability dependent on the existence of facts that they assert must prove that those facts exist.
   
• General Principles Regarding Burden of Proof:
• Initial Burden: The initial burden of proof rests with the party who asserts a fact. This party must present sufficient evidence to establish a prima facie case.
• Shifting Burden: Once the party bearing the initial burden of proof has provided sufficient evidence, the burden shifts to the opposing party to disprove the facts.
• Standard of Proof: The standard of proof required varies depending on the type of case. In criminal cases, the prosecution must prove guilt "beyond a reasonable doubt." In civil cases, the plaintiff must usually prove their case by a "preponderance of the evidence," meaning it is more likely than not that their claim is true.
• Presumptions: Legal presumptions can affect the burden of proof. A presumption is a rule of law that requires a particular inference to be drawn from a particular fact or set of facts. For example, a person is presumed innocent until proven guilty. Sections 107 to 114 deal with presumptions that shift the burden of proof in specific situations, such as Section 108 (presumption of death if a person has not been heard of for seven years) and Section 113B (presumption of dowry death).
• Evidentiary Burdens: These are lesser burdens that require a party to produce evidence on a particular issue, but they do not necessarily shift the ultimate burden of persuasion.
• Exceptions: In cases with specific exceptions (e.g., in self-defense claims), the burden may shift to the defendant to prove those exceptions.
   
• Case Law Illustrations:
• Woolmington v. DPP (1935): Established the principle that, in criminal cases, the prosecution bears the burden of proof, as the accused is presumed innocent until proven guilty.
• State of Haryana v. Sher Singh (1981): The Supreme Court held that the burden of proof lies with the prosecution to prove the guilt of the accused beyond a reasonable doubt and should not shift to the accused.
• Kusum Lata v. Satbir (2011): In this civil case, the court emphasized that the burden lies on the plaintiff to prove their claims based on the preponderance of probabilities.

Some other Key Concepts of Bharatiya Sakshya Adhiniyam, 2023

1. Examination-in-Chief
• Examination-in-Chief is the initial questioning of a witness by the party who called them to testify. Its purpose is to elicit facts relevant to the case from the witness. (Section 137 of the Indian Evidence Act, 1872 / Section 143 of the Bharatiya Sakshya Adhiniyam, 2023)
   
2. Cross-Examination and Its Conditions
• Cross-examination is the questioning of a witness by the opposing party. It is used to test the credibility of the witness, elicit unfavorable facts, and impeach the witness's testimony. Cross-examination must relate to facts in issue or relevant facts and must not harass, annoy, or humiliate the witness. (Section 139 of the Indian Evidence Act, 1872 / Section 145 of the Bharatiya Sakshya Adhiniyam, 2023)
• Conditions:
• The witness may be cross-examined after the exam-in-chief.
• Leading questions are allowed.
• It serves to expose inconsistencies, bias, or unreliability.
   
3. Re-examination and Its Conditions and Grounds
• Re-examination is the re-questioning of a witness by the party who called them to testify, after cross-examination. Its purpose is to clarify points raised during cross-examination or to introduce new facts relevant to the case, but only if they arise out of cross-examination. (Section 140 of the Indian Evidence Act, 1872 / Section 146 of the Bharatiya Sakshya Adhiniyam, 2023)
• Conditions:
• Only new issues raised during cross-examination can be addressed.
• Leading questions are not allowed.
   
4. Expert and Expert Opinion
• An expert is a person with special knowledge or skill in a particular field. Expert opinion is the opinion of an expert on a matter within their expertise. It is admissible if it is relevant to the fact in issue and the expert is qualified to give such opinion. Expert opinions are admissible in areas like forensic science, medical analysis, and handwriting comparison but are not binding on the court. (Section 45 of the Indian Evidence Act, 1872 / Section 45 of the Bharatiya Sakshya Adhiniyam, 2023)
   
5. Admission and Confession and Differentiation
• An admission is a statement made by a person suggesting an inference as to any fact in issue or relevant fact. A confession is an admission made by an accused person, acknowledging their guilt of an offense. The key difference is that confessions are made by accused persons and are more damaging, while admissions can be made by anyone and are less impactful. (Sections 17 to 21 of the Indian Evidence Act, 1872 / Sections 17 to 21 of the Bharatiya Sakshya Adhiniyam, 2023)
• Fact in Issue
• A fact in issue is a fact that must be proved or disproved to establish a claim or defense. It is directly related to the case's outcome, determining the rights or liabilities of the parties involved. Facts in issue help focus the trial on essential matters, as they are central to the case's determination. (Section 3 of the Indian Evidence Act, 1872 / Section 3 of the Bharatiya Sakshya Adhiniyam, 2023)
• Accused and Co-accused
• An accused is a person charged with a crime. A co-accused is a person jointly charged with another person for the same crime. Section: Section 133 of the Indian Evidence Act, 1872 discusses the role and treatment of accomplices in relation to the accused. This section ensures that all persons involved in a criminal act are properly identified and tried, with specific rights and protections granted to both.
   
6. Witness and Hostile Witness
• A witness is a person who gives evidence in a court of law. A hostile witness is a witness who is unwilling to testify or gives unfavorable evidence. A hostile witness can be cross-examined by the party who called them. (Section 154 of the Indian Evidence Act, 1872 / Section 160 of the Bharatiya Sakshya Adhiniyam, 2023)
   

Confession:

• A confession is a voluntary statement made by a person accused of a crime, acknowledging their involvement in the offense or admitting facts that infer guilt. In the Bharatiya Sakshya Adhiniyam, 2023, confessions are primarily covered under Sections 23 (formerly Section 25 of the Indian Evidence Act, 1872), which outline the conditions for admissibility of a confession in criminal proceedings. Here are the key points of Section 23:
• No confession made to a police officer shall be proved as against a person accused of any offence.
• No confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate, shall be proved against him.

This provision is based on the principle that confessions made to police officers are often unreliable, as they may be coerced or induced. Police officers may use various tactics to extract confessions, such as threats, promises, or physical or mental torture. To safeguard the rights of the accused and to ensure the reliability of confessions, the law prohibits the admissibility of confessions made to police officers.
Exception of Section 23 of BSA, 2023
The only exception to this rule is found in Section 29 of BSA, 2023 (Formally under Section 27 of IEA, 1872) which allows information from a confession made to a police officer to be admissible if it results in discovering material facts relevant to the case, as this information is seen as more reliable.

Relevant Cases:

• State of Maharashtra v. Chandrakant Narayan Vaidya[1] In this case, the Supreme Court reiterated the principle that confessions made to police officers are inadmissible. The Court emphasized the need for caution in dealing with confessions made in police custody and the importance of ensuring that they are voluntary and reliable.
   
• State of Maharashtra v. Abdul Quader This case further clarifies the admissibility of confessions. The Court held that a confession made to a police officer in the presence of a magistrate is admissible only if it is made voluntarily and without any inducement, threat, or promise.
   

Document:

In legal contexts, a document refers to any material that provides written, printed, or electronic information that can be used as evidence. Under the Bharatiya Sakshya Adhiniyam, 2023, Section 3 defines a document as any matter expressed or described upon any substance by means of letters, figures, or marks intended to be used as evidence.

This definition is quite broad and encompasses a wide range of items, including:

• Written documents (like letters, contracts, wills)
• Printed documents (like books, newspapers, magazines)
• Electronic records (like emails, text messages, digital photographs)
• Paintings, drawings, and maps
• Any other material that conveys information or ideas through symbols or marks.
   

• Presumption of Genuineness for Documents Over 30 Years Old The Bharatiya Sakshya Adhiniyam provides a legal presumption regarding the genuineness of documents that are 30 years old or older. It states that any document that is 30 years old or older is presumed to be genuine.
   
  • Conditions for the Presumption:
    • Age: The document must be at least 30 years old.
    • Production from Proper Custody: The document must be produced from proper custody. This means it must be produced from a place where such documents are usually kept.
    • No Suspicion of Forgery: There must be no suspicion that the document is forged or tampered with.
  If these conditions are met, the court will presume the document to be genuine, and the burden of proof shifts to the party challenging its authenticity. However, this presumption can be rebutted by evidence to the contrary.

Privileged Communication

Privileged Communication under the Bharatiya Sakshya Adhiniyam, 2023, refers to certain types of confidential communications that are protected from being disclosed as evidence in court proceedings. These privileges are provided to safeguard certain relationships where confidentiality is essential. Key provisions covering privileged communications under the Act include Sections 128 to 134.

• Communication Between Spouses
  • Section 128 protects communications between spouses during the marriage. Neither spouse can be compelled to disclose such communications, even after the marriage has ended.
  • However, this privilege does not extend to communications made in furtherance of a criminal act.
• Professional Communication
  • Section 132 protects communications between a client and their legal advisor, such as a lawyer or attorney.
  • The legal advisor cannot be compelled to disclose any communication made to them by their client in the course of their professional relationship.
• Official Communication
  • Section 130 protects certain official communications made to public officers in confidence.
  • Public officers cannot be compelled to disclose such communications if they believe that public interest would be harmed by disclosure.
• Confidential Communications with Legal Advisors
  • Section 134 protects confidential communications between individuals and their legal advisors.
  • It provides that no one shall be compelled to disclose to the court any confidential communication with their legal advisor unless they offer themselves as a witness.
  • The privilege aims to encourage full and frank communication between clients and their legal advisors, which is essential for effective legal representation.

Case Laws

• Ram Bharosey v. State of Uttar Pradesh[2]
• The Supreme Court held that ordinary conversations or letters relating to business should not be regarded as privileged.
• M.C. Verghese v. T.J. Ponnam[3]
• The Supreme Court held that even though a spouse is debarred from deposing to the contents of such correspondence, the same can be proved by a third person.[4]

Testimony under BSA

• The Bharatiya Sakshya Adhiniyam, 2023 reiterates the general principle that "all persons shall be competent to testify," as stated in Section 124.
• This means that in principle, anyone can be called to testify in a court of law, regardless of their age, gender, caste, creed, or social status.
• However, the BSA also recognizes that certain individuals may not be capable of giving reliable testimony.
• The court has the discretion to determine whether a person is competent to testify based on their ability to:
  • Understand the questions put to them: The witness must have the mental capacity to comprehend the questions asked.
  • Give rational answers: The witness must be able to provide coherent and relevant answers to the questions.
     
• Factors that may affect a person's competency to testify include:
  • General Rule of Competency: The Bharatiya Sakshya Adhiniyam states that all persons are presumed competent to testify unless disqualified by factors specified in the Act. This includes adults, children, and even individuals with certain disabilities, provided they can understand the questions asked and give rational answers.
  • Competency of Children: A child is competent to testify if the court is satisfied that the child is capable of understanding questions and providing intelligent answers. However, the child's testimony may require corroboration, especially if there are concerns about reliability due to age.
  • Mental Capacity: Persons with mental disabilities or those suffering from severe mental illnesses may be deemed incompetent if they cannot comprehend questions or provide rational answers. The court evaluates each individual's mental capacity based on the specific circumstances.
  • Convicted Persons and Co-Accused: A person previously convicted of an offense is not disqualified from testifying, as competency to testify is distinct from credibility. The court considers such testimony with caution, evaluating the potential for bias, especially if they are co-accused.
  • Religious Beliefs: A witness's religious beliefs do not affect their competency to testify. Whether or not an individual adheres to a specific religion is irrelevant in assessing their ability to provide evidence.

Can a Dumb Person Be a Competent Witness?

• Yes, a dumb person can be treated as a competent witness if they can communicate effectively through other means, such as writing, signs, or gestures. The law recognizes that the ability to communicate is essential for providing testimony, regardless of whether the witness can speak. If necessary, an interpreter can assist in conveying the witness's statements to the court.

• Case Law Example
• In Rameshwar v. State of Rajasthan (1952), the Supreme Court of India ruled that even though a child's testimony may need corroboration, a child who understands the nature of an oath and can provide rational answers is a competent witness. This aligns with the approach in the Bharatiya Sakshya Adhiniyam, where competency is evaluated based on the individual's ability rather than age alone.
• Leading Question Under the BSA
• A leading question is a question that suggests a particular answer or assumes a fact that has not yet been established. It can subtly guide a witness towards a specific response, potentially biasing their testimony.
• Examples of Leading Questions:
• During Examination-in-Chief and Re-examination: Leading questions are generally not allowed during examination-in-chief (direct examination) or re-examination because they may bias the witness's answers.
• Example: Instead of asking, "You were at home at 8 p.m., correct?" the examiner should ask, "Where were you at 8 p.m.?"
• During Cross-Examination: Leading questions are allowed in cross-examination because the purpose of cross-examination is often to challenge the accuracy and credibility of the witness's testimony.
• Example: "Isn't it true that you were not at the scene when the incident happened?" This is permitted in cross-examination to test the reliability of the witness's statement.
• With the Court's Permission: In some cases, with the court's permission, leading questions can be allowed during examination-in-chief if they deal with introductory or undisputed matters, such as asking a witness's name or occupation.
   
• Purpose and Importance
• Leading questions are carefully regulated to ensure that a witness's responses reflect their genuine recollections and knowledge rather than suggestions from the examining attorney. This promotes fairness in judicial proceedings, helping to obtain untainted, authentic testimonies.
• Illustrative Case Law
• In Ramchander v. State of Haryana (1981), the Supreme Court emphasized that leading questions should not influence key testimonies in the examination-in-chief. The court highlighted that the purpose of excluding leading questions in direct examination is to ensure that the witness's responses are not influenced by suggestive questioning.
   
• Doctrine of Res Gestae
• The doctrine of res gestae is an exception to the hearsay rule, which generally excludes statements made out of court from being admitted as evidence. It allows the admission of certain statements made by a person who was not present in court, as long as those statements are so closely connected to the facts in issue that they form part of the same transaction.
• Section 4 of Bharatiya Sakshya Adhiniyam, 2023 provides for the admissibility of facts which, though not in issue, are so intimately connected with a fact in issue as to form part of the same transaction. This section is commonly referred to as the doctrine of res gestae.
• Key Elements of Res Gestae:
• Contemporaneity: The statement must be made contemporaneously with the act or immediately thereafter, without any opportunity for deliberation or fabrication.
• Spontaneity: The statement must be spontaneous and instinctive, not a carefully constructed narrative.
• Relevance: The statement must be relevant to the fact in issue and must help to explain or illustrate the transaction.

Illustrations
If a person is injured in an accident and, immediately after the accident, exclaims, "The car was speeding," this statement may be admissible as part of the res gestae, even though the person who made the statement is not available to testify in court.

If a witness sees someone running from a crime scene and exclaims, "That's the guy who did it!" at that moment, the statement may be admissible.

Key Amendments and Changes in Bhartiya Sakshya Adhiniyam, 2023

Aspect	Indian Evidence Act, 1872	Bharatiya Sakshya Adhiniyam, 2023
Structure and Language	Written in Victorian-era legal English with colonial terminology.	Rewritten in simpler, modern Hindi and Indianized legal terminology.
Gender-Neutral Provisions	Some provisions lack explicit gender neutrality.	Introduced gender-neutral language in provisions concerning witnesses and evidence.
Electronic Evidence	Recognized but less comprehensive (Sections 65A and 65B).	More detailed provisions on digital evidence admissibility and security.
Hearsay Evidence Exceptions	Limited and rigid in application.	Expanded hearsay exceptions for situations like dying declarations or electronic records.
Privilege for Witnesses	Focus on traditional privileges (e.g., marital, official).	Strengthened protections for vulnerable witnesses and whistleblowers.
Confessions to Police	Section 25 barred confessions to police from being admissible, except Section 27 disclosures.	Similar provisions but with additional safeguards for electronic records.
Dying Declarations	Section 25 barred confessions to police from being admissible, except Section 27 disclosures.	Expanded admissibility with better safeguards for authenticity.
Evidence by Dumb Witnesses	Allowed under Section 32 for victims expecting death.	Retained but improved mechanisms for interpreters and alternative communication methods.
Child Witnesses	Allowed if the child understands the questions (Section 118).	Enhanced focus on child witness protection and reliability.
Hostile Witnesses	Hostility assessed case by case, limited procedures for contradictions.	Expanded rights for examining hostile witnesses to ensure justice.
Presumption of Documents (30 Years)	Presumed genuine if 30 years old under Section 90.	Shortened this presumption to 20 years for documents.
Forensic and Expert Evidence	Limited acknowledgment of evolving sciences (Sections 45-51).	Comprehensive inclusion of forensic, DNA, and cyber forensics evidence.
Admissibility of Electronic Evidence	Section 65B addressed electronic records but lacked flexibility.	Enhanced focus on admissibility, including blockchain, cloud, and metadata verification.
Witness Examination	Examined under Sections 135-166 with rigid rules.	Streamlined rules for examination, cross-examination, and re-examination.
Burden of Proof	Covered under Sections 101-114.	Retained with some restructuring to improve clarity and application.
State Secrets and Privileges	Section 123 protected state secrets.	Expanded scope with detailed definitions of national security interests.
CCTV and Surveillance Evidence	Not explicitly covered.	Recognized as admissible under modern evidentiary rules.

End Notes:

• State of Maharashtra v. Chandrakant Narayan Vaidya: AIR 2020 SC 2491
• Ram Bharosey v. State of Uttar Pradesh: AIR 1954 SC 704
• M.C. Verghese v. T.J. Ponnam: AIR 1969 SCR(2) 692
• Drishti Judiciary: Privileged Communications under BSA: https://www.drishtijudiciary.com/to-the-point/bharatiya-sakshya-adhiniyam-&-indian-evidence-act/privileged-communications-under-bsa

Written By: Mr.Syed Mohd Osama Azam, Ll.B. Final-Year Student, Saifia Arts, Commerce & Law College, Bhopal (Mp)
Email: [email protected], Ph no: 7000657720