Law of Evidence
Law of Evidence governs what facts may be proved, by whom, and in what manner. The Bharatiya Sakshya Adhiniyam 2023 now replaces the Indian Evidence Act 1872, retaining most principles while tightening electronic evidence.
Relevance and admissibility
- Relevance is logical; admissibility is legal. Res gestae, admissions, confessions and dying declarations are relevant under specific provisions.
- A confession to a police officer is inadmissible; so much of it as leads to discovery of a fact is provable.
- A dying declaration is admissible even without oath or the maker's expectation of death, but the court must scrutinise the statement and seek corroboration where it is suspicious.
Burden and presumptions
- He who asserts must prove; the standard in civil cases is preponderance of probabilities, in criminal cases proof beyond reasonable doubt.
- Presumptions may be of law, of fact, or conclusive; the presumption of innocence is foundational.
Documentary and electronic evidence
- Primary and secondary evidence; certified copies.
- Electronic records require a certificate under s.63 BSA; Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) held the certificate mandatory.
Examination of witnesses
- Competency, privilege, examination-in-chief, cross-examination, re-examination; leading questions are barred in chief but allowed in cross.
- A hostile witness may be cross-examined by the party calling him; his evidence is not wiped out but its weight is reduced.
Worked example
A dying declaration recorded by a magistrate without oath, in the victim's own words, and consistent with medical evidence, can convict without corroboration. If the statement is recorded by police or is suspicious, the court looks for corroboration.
Traps
Confession is not the same as admission; the discovery provision permits only the discovered fact; electronic evidence without certificate is inadmissible; a hostile witness's whole testimony is not automatically rejected.