UNIT -I

FEATURES OF BHARATIYA SAKSHYA ADHINIYAM, 2023

The Bharatiya Sakshya Adhiniyam, 2023 is an updated and comprehensive

law introduced to replace the Indian Evidence Act, 1872. This new legislation
was part of a series of legal reforms aimed at modernizing the criminal justice
system in India. The Bharatiya Sakshya Adhiniyam (BSA) governs the rules
and procedures related to the admissibility, relevance, and evaluation of
evidence in legal proceedings.

Key Features of the Bharatiya Sakshya Adhiniyam, 2023

1. The new Act on law of evidence has been named as “Bharatiya Sakshya
Adhiniyam (BSA), 2023” which has replaced the Indian Evidence Act, 1872.
2. The words like ‘Parliament of the United Kingdom’, ‘Provincial Act’, ‘
notification by the Crown Representative’, ‘London Gazette’, ‘any Dominion,
colony or possession of his Majesty, ‘Jury’, ‘Lahore’, ‘United Kingdom of Great
Britain and Ireland’, ‘Commonwealth,’ ‘Her Majesty or by the Privy Council,’ ‘
Her Majesty's Government’, ‘copies or extracts contained in the London
Gazette, or purporting to be printed by the Queen’s Printer’, ‘possession of the
British Crown’, ‘Court of Justice in England’, ‘Her Majesty’s Dominions’, ‘
Barrister’ have thus been deleted as they are no longer relevant.
3. Language of the BSA has been modernized. The words like ‘Vakil’,
‘Pleader’ and ‘Barrister’ have been replaced with the word ‘Advocate’.
4. The definition of “documents” in Section 2(1)(d) has been expanded to
include an electronic or digital record on emails, server logs, documents on
computers, laptop or smartphone, messages, websites, cloud, locational
evidence and voice mail messages stored on digital devices. This update
acknowledges the shift from traditional paper-based documentation to
electronic forms of communication and data storage in contemporary
India. It helps ensure that the legal system is equipped to handle cases
involving digital evidence. It will provide legal practitioners, law
enforcement, and judiciary with a comprehensive framework to deal with
digital evidence stored on various platforms.
5. Similarly, the definition of ‘evidence’ in Section 2(1)(e) has been
expanded to include any information given electronically. This will
permit the appearance of witnesses, accused, experts and victims to
depose their evidence through electronic means. It also establishes
‘digital records’ as documentary evidence. This addition in BSA
demonstrates a technology-neutral approach by recognizing the validity
of information given electronically and considering electronic
communication on par with traditional in-person statements.It recognizes
the challenges involved in ensuring repeated physical presence in Courts and
offers a viable alternative, minimizing the necessity for physical travel and the
related expenses.
6. ‘Coercion’ has been added to Section 22 as one of the acts causing a
confession to become irrelevant. In Section 39, the scope of an expert
has been expanded to include persons especially skilled in ‘any other
field’.
7. An Explanation has been added to Section 24 that clarifies that in a
case when multiple people are tried jointly, if the accused who has
absconded or who failed to comply with the proclamation issued against
him under Bharatiya Nagarik Suraksha Sanhita, is absent during the
trial, the trial will be conducted as a joint trial.
8. Section 52 of BSA enables the Courts to take judicial notice of laws
having extra-territorial operations, international treaty, agreement or
convention with countries or decisions made at international
associations or other bodies; seals of Tribunals, State Legislatures and
the territory of India (as opposed to ‘The territories under the dominion
of the Government of India’)
9. To leverage the use of technology in collection of evidence, significant
changes have been introduced in BSA that recognize contemporary
technological practices where information is distributed and stored across
various platforms in various forms. In Section 57, dealing with primary
evidence, new Explanations have been expanded to include —
(i) an electronic or digital record which is created or stored, either
simultaneously or sequentially in multiple files, then each such file is an
original.
(ii) an electronic or digital record is produced from proper custody, it is
sufficient to prove its contents unless it is disputed.
(iii) a video recording is simultaneously stored in electronic form and
transmitted or broadcast to another, each of the stored recordings is an
original.
(iv) an electronic or digital record is stored in multiple storage spaces in a
computer resource, each such automated storage, including temporary
files, is an original.
These additions establish a framework for the legal treatment of electronic
or digital records, emphasizing on their proper custody and establishing their
originality in various storage scenarios. It streamlines the procedure for
validating and verifying electronic content.
10. Scope of secondary evidence has been expanded in Section 58.
Secondary evidence now also includes - oral admissions, written
admissions, and evidence provided by a person who is skilled in
examining certain documents, which being technical or voluminous
cannot be conveniently examined. Now, giving matching hash # value of
original record as proof of evidence shall be admissible as secondary
evidence. Importance is given to the integrity of a specific file and not to
the entire storage medium.
11. Section 61 brings parity in the admissibility of electronic/digital record and
other documents. Now, electronic or digital records will have the same legal
effect, validity and enforceability as other documents.
12. Section 62 & 63 of the Bharatiya Sakshya Adhiniyam provide a
comprehensive framework for the admissibility of electronic records as
evidence. This section outlines the requirements for submitting a certificate for
establishing the authenticity of an electronic record. Such a certificate is to be
signed by the person in charge of the computer or communication device.
Furthermore, a separate certificate provided in the schedule to BSA
mandates the signature of an expert, whose endorsement serves as
proof for any statements contained within the certificate. Once signed,
the certificate serves as evidentiary support for the matters it asserts.
13. Changes in Section 138 have been made to enable an accomplice to
testify in court against the person accused of the crime. It clarifies that a
conviction of the accused is not deemed illegal when it is based on the
corroborated testimony of the accomplice. The original provision stated that
conviction is not illegal merely because it proceeds upon uncorroborated
testimony of an accomplice.
14. A proviso has been added to Section 165 that disallows any Court to
require any communication between Ministers and President of India to be
produced before it.
15. Modernization of Evidence Laws: The BSA updates the archaic provisions
of the Indian Evidence Act, 1872, aligning them with contemporary legal and
technological developments.
16. Digital and Electronic Evidence: The Act introduces more robust
provisions for the admissibility and evaluation of digital and electronic
evidence, recognizing the growing importance of technology in the modern
world.
17. Witness Protection: The Act includes provisions aimed at enhancing the
protection of witnesses, ensuring their safety and integrity during legal
proceedings.
18. Simplified Language: The BSA is drafted in simpler and more accessible
language compared to its predecessor, making it easier for the general public
and legal practitioners to understand and apply.
19. Special Provisions for Vulnerable Sections: The Act recognizes the need
for special procedures and protections for vulnerable witnesses, such as
children and victims of sexual offenses.
20. Relevance and Admissibility: The Act streamlines the rules concerning the
relevance and admissibility of evidence, making it easier for courts to evaluate
the importance of different types of evidence.

DEFINITION:-

(1) In this Adhiniyam, unless the context otherwise requires,--

(a) "Court" includes all Judges and Magistrates, and all persons, except
arbitrators, legally authorised to take evidence;

The words “Judge” and the word “Magistrate” have been defined in the Act,
1872 but for the purpose of explaining we may take help of other Acts or
codes of laws.
In Brajnandan Sinha vs. Jyoti Narayan, the SC held that the definition of the
word “Court” as given in the Evidence Act, however, has been held not
exhaustive but framed only for the purpose of the Act and is not be extended
where such an extention is not warranted.

(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;

In this type of presumption no evidence can be given to disprove the fact for
which a presumption is raised by the court. This is called presumption of law.
This is always irrebuttable presumption of law.

(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;

(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 those means, intended to be used, or
which may be used, for the purpose of recording that matter and includes
electronic and digital records.

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;

(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;

(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.

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;

The first clause of the definition of "fact" refers to external facts which are the
subject of perception by the five senses, and the second clause refers to
internal facts, which are the subject of consciousness. Facts are, thus,
(adopting the classification of Bentham), either physical-e.g., the existence of
visible objects, or psychological-e.g., the intention or animus of a particular
individual in doing a particular act. The psychological facts are incapable of
direct proof by the testimony of witnesses; their existence can be ascertained
only by the confession of the party whose mind is their seat or by presumptive
inference from physical facts. This constitutes the only difference between
physical and psychological facts.
(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.

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.

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;

(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;

This type of presumption is a discretionary presumption. In this type of

presumption there is always a discretion for the court, to raise a presumption
or not to raise in favour of a party. Whenever it is provided by this Sanhita that
the Court may presume a fact, it may either regard such fact as proved,
unless and until it is disapproved or may call for proof of it. Once the court
uses its discretion in favour of a party to the proceeding then the burden to
disprove that fact lies on the opposite party. This presumption is called as
“Presumption of fact” or “natural” or “discretionary presumption of fact”. This
type of presumption is always rebuttable. This is called “rebuttable
presumption of fact”.

(i) "not proved".--A fact is said to be not proved when it is neither proved nor
disproved;

(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;

(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;

In civil cases issues arises when a fact is asserted or affirmed by the one
party and denied by the other party. This material proposition is that
prosposition of law or fact which a plaintiff alleges in order to show a right ans
sues the defendant and the defendant in response to the suit of the plaintiff
denies the facts alleged by the plaintiff then it becomes “ fact in issue”.

Difference between Relevant Fact and Fact in Issue.

(i) Fact-in-issue is a necessary ingredient of a right or liability. Where as,
relevant fact is not a necessary ingredient of a right or liability.
(ii) Fact-in-issue is called principal fact “factum probandum”. Where as
relevant fact is called evidentiary fact or “factum probantia”.
(iii) Fact-in-issue affirmed by one party and denied by other party. Whereas,
the relevant fact is the foundation of inference.

(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.

This type of presumption leaves no option with the court. The court is bound
to raise a presumption in favour of a party. If the court raises the presumption
in favour of a party then the burden will shift to his opponent to disprove the
fact for which the court has raised the presumption. This type of presumption
is called as “presumption of law” and is also called as “artificial presumption”.
(2) Words and expressions used herein and not defined but defined in the
Information Technology Act, 2000 (21 of 2000), the Bharatiya Nagarik
Suraksha Sanhita, 2023 and the Bharatiya Nyaya Sanhita, 2023 shall have
the same meanings as assigned to them in the said Act and Sanhitas.

APPLICABILITY OF THE BSA, 2023 ON ELECTRONIC

RECORD

Introduction:
The society as on today has developed to the extent where several offences
have been taking place by way of electronic and digital means due to which
the importance of scientific and electronic evidence during investigation and
trial has increased considerably. The Honb’le Supreme Court in Tomaso
Bruno & Anr vs State Of U.P observed “with the increasing impact of
technology in everyday life and as a result, the production of electronic
evidence in cases has become relevant to establish the guilt of the accused or
the liability of the defendant. And that Production of scientific and electronic
evidence is of great help to the investigating agency and also to the
prosecution.

As under Section 2 of Bharatiya Sakshya Adhiniyam, 2023 a "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 those means, intended to be used, or which may be used,
for the purpose of recording that matter and includes electronic and digital
records.”

The word “Electronic record” has been defined under Section 2(t) of the
Information Technology Act, 2000 means “data, record or data generated,
image or sound stored, received or sent in an electronic form or micro film or
computer generated micro fiche.” and “data” is defined in Section 2(o) of the
Information Technology Act as “a representation of information, knowledge,
facts, concepts or instructions which are being prepared or have been
prepared in a formalised manner, and is intended to be processed, is being
processed or has been processed in a computer system or computer network,
and may be in any form (including computer printouts magnetic or optical
storage media, punched cards, punched tapes) or stored internally in the
memory of the computer.”

"Evidence" as defined under section 2(e) of Bharatiya Sakshya Adhiniyam,

2023 includes 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;
and all documents including electronic or digital records produced for the
inspection of the Court and such documents are called documentary
evidence. Previously Indian Evidence Act defined oral evidence as statements
permitted to or required to be made before the court by the witnesses,
However Section 2(e) of BSA, defines oral evidence as statements including
statements given electronically.

Prior to enactment of Bharatiya Sakshya Adhiniyam, 2023, section 3 of Indian

Evidence Act, did not include statements given electronically. And a question
arose before the Hon’ble Supreme Court, with regard to the question of
validity of procedure of recording the oral evidence of witnesses through video
conferencing, as Section 273 of the Criminal Procedure Code does not
provide for the taking of evidence by video conferencing. The Hon’ble
Supreme Court of India in State Of Maharashtra vs Dr. Praful B. Desai, held
that “Section 273 provides for dispensation from personal attendance. In such
cases evidence can be recorded in the presence of the pleader. The presence
of the pleader is thus deemed to be presence of the Accused. Thus Section
273 contemplates constructive presence. This shows that actual physical
presence is not a must. This indicates that the term "presence", as used in
this Section, is not used in the sense of actual physical presence. A plain
reading of Section 273 does not support the restrictive meaning sought to be placed by
the Respondent on the word "presence". One must also take note of the definition of
the term 'Evidence' as all statements which the Court permits or requires to be made
before it by witnesses, in relation to matters of fact under inquiry; such statements are
called oral evidence and all documents including electronic records produced for the
inspection of the Court; such documents are called documentary evidence" Thus
evidence can be both oral and documentary and electronic records can be produced as
evidence. This means that evidence, even in criminal matters, can also be by way of
electronic records. This would include video- conferencing.”

The Hon’ble Supreme Court further held that “Recording of evidence by video
conferencing also satisfies the object of providing, in Section 273, that
evidence be recorded in the presence of the Accused. The Accused and his
pleader can see the witness as clearly as if the witness was actually sitting
before them. In fact the Accused may be able to see the witness better than
he may have been able to if he was sitting in the dock in a crowded Court
room. They can observe his or her demeanour. In fact the facility to play back
would enable better observation of demeanour. They can hear and rehear the
deposition of the witness. The Accused would be able to instruct his pleader
immediately and thus cross- examination of the witness is as effective, if not
better. The facility of play back would give an added advantage whilst cross-
examining the witness. The witness can be confronted with documents or
other material or statement in the same manner as if he/she was in Court. All
these objects would be fully met when evidence is recorded by video
conferencing. Thus no prejudice, of whatsoever nature, is caused to the
Accused.”

Electronic and Digital Records:

Document as under section 2(d) of BSA includes both electronic and digital
records. A digital record is a computer file that contains information intended
to live on a computer or other digital system. This information might be
created within the computer system or converted from a physical document
into a digital format, e.g., scanned documents. PDFs and multimedia files like
audio and video are common digital documents. And also, videos and
photographs and presentations etc., While electronic records are also in a
digital format, they are typically part of a larger information system, unlike
digital records. To read, write, and modify these documents, a supporting
platform is required, such as an email server or specific software, like
spreadsheet applications. Users can store, access, edit, and share digital
documents without needing format conversion. Electronic documents are
more system-dependent, and may not be universally compatible. Example,
emails, websites, text messages, social media postings, word and excel
documents. Electronic records are born and exist solely within computer
systems. Whereas, Digital records are digitized versions of physical
documents or documents originally created in a digital format. This could be a
scanned paper form or a Word document created on a computer.

Electronic Evidence: The Hon’ble Apex Court in Tomaso Bruno & Anr vs State
Of U.P observed that the relevance of electronic evidence is also evident in
the light of Mohd. Ajmal Mohammad Amir Kasab vs. State of Maharashtra,
(2012) , wherein production of transcripts of internet transactions helped the
prosecution case a great deal in proving the guilt of the accused. Similarly, in
the case of State (NCT of Delhi) vs. Navjot Sandhu, the links between the
slain terrorists and the masterminds of the attack were established only
through phone call transcripts obtained from the mobile service providers.”
The Honb’le Apex Court also held that non-production and collection of
electronic evidence such as CCTV footage, call records and SIM details of
mobile phones seized from the accused cannot be said to be mere instances
of faulty investigation but amount to withholding of best evidence.

Proviso to section 79A of the Information Technology (Amendment) Act of

2008 states that "electronic form evidence" means any information of
probative value that is either stored or transmitted in electronic form and
includes computer evidence, digital audio, digital video, cell phones and digital
fax machines. And as under BSA, 2023 Electronic evidence includes, oral
statements given electronically and electronic or digital records. Illustration (vi)
of section 2 (d) of BSA states that electronic records on emails, server logs,
documents on computers, laptop or smart phone, messages, websites and
voice mail messages stored on digital devices are documents; Electronic
evidence includes devices such as mobiles, CD, pen drive, Floppy disk, hard
drives or texts, emails, audio and video recordings stored on such devices.

Admissibility of electronic records:

Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, states that any

information contained in an electronic record which is printed on paper,
stored, recorded or copied in optical or magnetic media or semiconductor
memory which is produced by a computer or any communication device or
otherwise stored, recorded or copied in any electronic form (referred to as the
computer output) shall be deemed to be also a document. Such Electronic
record is admissible in any proceedings, without further proof or production of
the original, as evidence or any contents of the original or of any fact stated
therein of which direct evidence would be admissible if the conditions
mentioned under section 63 are satisfied.

The conditions as stated under section 63 of BSA are,

(a) that the computer output was produced by the computer or device, during
the period over which the computer or device was used regularly to create,
store or process information for the purposes of any activity regularly carried
on over that period by the person having lawful control over the use of the
computer or communication device;

(b) During the said period, information contained in the electronic record so
derived was regularly fed into the computer or device in the ordinary course of
the said activities;

(c) That throughout the material part of the said period, the computer or
device was operating properly, in case for any period it was not operating
properly or was out of operation, then such part of period, was not such to
affect the electronic record or the accuracy of its contents; and
(d) That the information contained in the electronic record reproduces or is
derived from such information fed into the computer or device in the ordinary
course of the said activities.

Where such creating, storing or processing information for the purposes of

any activity regularly carried on over that period was regularly performed by
means of one or more computers or communication device, whether in
standalone mode (a device or system can function without being connected to
something else) or on a computer system; or on a computer network; or on a
computer resource; or through an intermediary, all such computers or
communication devices used for that purpose during that period shall be
treated as a single computer or communication device.

In any proceedings, whether civil or criminal, Section 63 of the Bharatiya

Sakshya Adhiniyam, 2023, provides for Submission of a certificate along with
the Electronic record for:

(a) Identifying the electronic record containing the statement and describing
the manner in which it was produced;

(b) Giving such particulars of any device involved in the production of that
electronic record for the purpose of showing that the electronic record was
produced by a computer or a device,

(c) Dealing with any of the matters to which the conditions mentioned in sub-
section (2) relate, and the same shall be signed by the person in charge of the
computer or device or the management of the relevant activities and also an
expert shall be evidence of any matter stated in the certificate to the best of
the knowledge and belief of the person stating it in the certificate.

The schedule of Bharatiya Sakshya Adhiniyam, 2023, specifies the following

form of certificate to be submitted along with the electronic record:

The expert has to state the hash value of the electronic/ digital record and the
algorithm through which it is obtained, in his certificate. Hash value is a
unique numeric value that represents the contents of a file or data. The hash
value of received data can be compared to the hash value of the original data
to check if it's been altered. An algorithm is a mathematical function that
converts data into a fixed-length string of characters. And SHA-256 is the
National Institute of Standards and Technology’s recommended and officially
approved standard algorithm.

Section 63 (5) states that information shall be taken to be supplied to a

computer or device if it is supplied thereto in any appropriate form whether
directly or with or without human intervention or by means of any appropriate
equipment; and a computer output shall be taken to have been produced by a
computer or device whether it was produced by it directly or with or without
human intervention or by means of any appropriate equipment.
Production of certificate under section 63 (section 65-B of IEA):

The interpretation of Law relating to the production of the certificate under

erstwhile Section 65-B (4) of the Indian Evidence Act, 1872 along with the
electronic record, began with the decision of the Hon’ble Supreme Court of
India in State (N.C.T. Of Delhi) vs Navjot Sandhu, Wherein the Hon’ble Apex
court while dealing with the call records and printouts of the computerized
record held that “Section 65 enables secondary evidence of the contents of a
document to be adduced if the original is of such a nature as not to be easily
movable. It is not in dispute that the information contained in the call records
is stored in huge servers which cannot be easily moved and produced in the
Court. Hence, printouts taken from the computers/servers by mechanical
process and certified by a responsible official of the service providing
Company can be led into evidence through a witness who can identify the
signatures of the certifying officer or otherwise speak to the facts based on his
personal knowledge. Irrespective of the compliance of the requirements of
Section 65B which is a provision dealing with admissibility of electronic
records, there is no bar to adducing secondary evidence under the other
provisions of the Evidence Act, namely Sections 63 & 65. It may be that the
certificate containing the details in sub-Section (4) of Section 65B is not filed
in the instant case, but that does not mean that secondary evidence cannot
be given even if the law permits such evidence to be given in the
circumstances mentioned in the relevant provisions, namely Sections 63 &
65.”

Thereafter in Anvar P.V vs. P.K.Basheer & Others, The Hon’ble Apex Court
held that if an electronic record as such is used as primary evidence under
Section 62 of the Evidence Act, the same is admissible in evidence, without
compliance of the conditions in Section 65B of the Evidence Act. And that an
electronic record by way of secondary evidence shall not be admitted in
evidence unless the requirements under Section 65B are satisfied. The
Hon’ble Supreme Court held that “notwithstanding anything contained in the
Evidence Act, any information contained in an electronic record which is
printed on a paper, stored, recorded or copied in optical or magnetic media
produced by a computer shall be deemed to be a document only if the
conditions mentioned under sub- Section (2) are satisfied, without further
proof or production of the original. The very admissibility of such a document,
i.e., electronic record which is called as computer output, depends on the
satisfaction of the four conditions under Section 65B(2).” Thereby the decision
in Navjot Sandhu's case was over ruled.

The Hon’ble Apex Court further held that under Section 65B(4) of the
Evidence Act, if it is desired to give a statement in any proceedings pertaining
to an electronic record, it is permissible provided the following conditions are
satisfied:

(a) There must be a certificate which identifies the electronic record containing
the statement;
(b) The certificate must describe the manner in which the electronic record
was produced;
(c) The certificate must furnish the particulars of the device involved in the
production of that record;
(d) The certificate must deal with the applicable conditions mentioned under
Section 65B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible official

position in relation to the operation of the relevant device.

While so, in Shafhi Mohammad vs. The State Of Himachal Pradesh, The
Honb’le Supreme Court relaxed the condition of production of certificate under
section 65-B of the Evidence Act. And held that “The applicability of
procedural requirement under Section 65B(4) of the Evidence Act of
furnishing certificate is to be applied only when such electronic evidence is
produced by a person who is in a position to produce such certificate being in
control of the said device and not of the opposite party.” And the Hon’ble Apex
Court held that “a party who is not in possession of device from which the
document is produced. Such party cannot be required to produce certificate
under Section 65B(4) of the Evidence Act. The applicability of requirement of
certificate being procedural can be relaxed by Court wherever interest of
justice so justifies. And that it will be denial of justice to the person who is in
possession of authentic evidence/witness but on account of manner of
proving, such document is kept out of consideration by the court in absence of
certificate under Section 65B(4) of the Evidence Act, which party producing
cannot possibly secure.” And the Hon’ble Apex Court held that the,
requirement of certificate under Section 65B(h) is not always mandatory.

Again the matter was referred to a Three Judge Bench of Hon’ble Supreme
Court of India in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal And
the Hon’ble Apex Courrt held that the major premise of Shafhi Mohammad’s
case that such certificate cannot be secured by persons who are not in
possession of an electronic device is wholly incorrect. And held that an
application can always be made to a Judge for production of such a certificate
from the requisite person under Section 65B(4) in cases in which such person
refuses to give it. And thereby the law laid down in Shafhi Mohammed’s case
was overruled.

The Hon’ble Apex court further held that where the certificate has been
applied for from the person or the authority concerned, and the person or
authority either refuses to give such certificate, or does not reply to such
demand, the party asking for such certificate can apply to the Court for its
production under the provisions of the Evidence Act, CPC or CrPC. And when
once such application is made to the Court, and the Court orders or directs
that the requisite certificate be produced by a person, and the party asking for
the certificate has done all that he can possibly do to obtain the requisite
certificate. Two Latin maxims become important at this stage, first is lex non
cogit ad impossibilia i.e. the law does not demand the impossible, and
impotentia excusat legem i.e. when there is a disability that makes it
impossible to obey the law, the alleged disobedience of the law is excused. It
was held that the requisite certificate in Section 65B (4) of the Indian Evidence
Act, 1872 is unnecessary if the original document itself is produced. The
Hon’ble Apex Court of India held that the provisions of Section 62 of the
Indian Evidence Act, 1872 are not applicable to electronic records, and that
the certificate as required under Section 65B (4) of the Indian Evidence Act,
1872 is mandatory for admitting secondary evidence of electronic record.

Time of Producing such Certificate:

The Hon’ble Apex Court in Arjun Panditrao Khotkar vs Kailash Kushanrao

Gorantyal, held that Section 65B does not speak of the stage at which such
certificate must be furnished to the Court. But In Anvar P.V, the Hon’ble Apex
Court observed that such certificate must accompany the electronic record
when the same is produced in evidence. The Hon’ble Apex court also held
that “We may only add that this is so in cases where such certificate could be
procured by the person seeking to rely upon an electronic record. However, in
cases where either a defective certificate is given, or in cases where such
certificate has been demanded and is not given by the concerned person, the
Judge conducting the trial must summon the person/persons referred to in
Section 65B(4) of the Evidence Act, and require that such certificate be given
by such person/persons. This, the trial Judge ought to do when the electronic
record is produced in evidence before him without the requisite certificate in
the circumstances aforementioned. This is, of course, subject to discretion
being exercised in civil cases in accordance with law, and in accordance with
the requirements of justice on the facts of each case. When it comes to
criminal trials, it is important to keep in mind the general principle that the
accused must be supplied all documents that the prosecution seeks to rely
upon before commencement of the trial, under the relevant sections of the
CrPC.”

Electronic and Digital Signatures: Electronic signature is a general term for

any method of signing a document electronically, such as an image of a
signature, a drawn signature, or clicking an "Accept" button. Electronic
signatures are often used to replace handwritten signatures and can be fast
and easy to create. However, they don't always include proof of identity, so
anyone could upload an image of a signature. Digital signature is a type of
electronic signature that uses encryption and a digital certificate to verify the
identity of the signer and the authenticity of the document. Digital signatures
are often used in regulated industries or when additional identity verification is
required. They are considered more secure than electronic signatures.

Proof of Electronic signature: Section 66 of the Bharatiya Sakshya Adhiniyam,

2023, provides that an electronic signature must be proved to be the
electronic signature of any subscriber which has been affixed to an electronic
record, except in the case of a secure electronic signature. Therefore, except
in case of secure electronic signature, where an electronic signature is affixed
on an electronic record, it must be proved that the electronic signature
belongs to the subscriber.

Proof of Digital signature: Section 73 of the Bharatiya Sakshya Adhiniyam,

2023, provides that in order to ascertain whether a digital signature is that of
the person by whom it purports to have been affixed, the Court may direct the
person or the Controller or the Certifying Authority to produce the Digital
Signature Certificate; or any other person to apply the public key listed in the
Digital Signature Certificate and verify the digital signature purported to have
been affixed by that person. Section 73 allows the court to require production
of the digital Signature certificate, or Apply public key verification methods to
ensure that the digital signatures are authentic or Direct a person to create
new writing or signatures in court for comparison purposes, in order to prove
the Digital Signature.

Presumption as to Electronic Signature Certificates:

Section 87 of the Bharatiya Sakshya Adhiniyam, 2023, creates a presumption

that the information listed in an Electronic Signature Certificate is correct,
except for information specified as subscriber information which has not been
verified, if the certificate was accepted by the subscriber, unless contrary is
proved. Therefore, the court has to presume that the information in an
electronic signature certificate is accurate, unless the certificate contains
subscriber information that has not been verified.

Presumption as to electronic messages:

Section 90 of the Bharatiya Sakshya Adhiniyam, 2023, creates a presumption

that an electronic message, forwarded by the originator through an electronic
mail server to the addressee to whom the message purports to be addressed
corresponds with the message as fed into his computer for transmission; but
the Court shall not make any presumption as to the person by whom such
message was sent. The Court has to presume that an electronic message's
content is accurate as it was when it was input for transmission. However, the
presumption cannot be raised as to the identity of the sender.

Presumption as to electronic records five years old:

Section 93 of the Bharatiya Sakshya Adhiniyam, 2023, creates a presumption

in case of an electronic record purporting to be or proved to be of five years
old, and when the same is produced from any custody which the Court in the
particular case considers proper, the Court may presume that the electronic
signature which purports to be the electronic signature of any particular
person was so affixed by him or any person authorized by him in this behalf.
Where the court considers that the five year old electronic record is produced
from proper custody, it shall presume that the electronic signature thereon
was affixed by the person it purports to be of or the person authorized by
him/her.

Explanation of section 81 of BSA, elucidates, that electronic records are said

to be in proper custody if they are in the place in which, and looked after by
the person with whom such document is required to be kept; but no custody is
improper if it is proved to have had a legitimate origin, or the circumstances of
the particular case are such as to render that origin probable.
Conclusion:

Several offences have been taking place due to the increased use of
technology in our day to day lives. Even simple chats in whats app, SMS can
be spoofed and modified. And the caller ID and emails of individuals can be
spoofed. Therefore, electronic and digital records become relevant in all these
cases as evidence. However, the electronic and digital records have to be
evaluated carefully. The chain of custody of such records have to be prepared
to show who handled the evidence, as mishandling the same can corrupt the
evidence. Special skills and infrastructure are required for handling and
preserving electronic and digital records. And there is need to formulate
safeguards for ensuring the information contained in the electronic records is
protected, also ensuring to protect the privacy and confidentiality in such
information.

********************************

TYPES OF EVIDENCE UNDER BSA

The Act classifies evidence into the following broad categories:

1. Oral Evidence
2. Documentary Evidence
3. Real Evidence
4. Electronic and Digital Evidence
5. Hearsay Evidence
6. Circumstantial Evidence

Each category of evidence has its significance in the judicial process and
different rules governing its admissibility.

1. Oral Evidence (Sections 54 and 55)

Oral evidence refers to statements made by witnesses during a trial. It is

verbal testimony that relates to facts observed by the witness.

– Direct Testimony: Oral evidence must be direct, as per Section 54 of the

BSA. The witness who presents oral evidence must have directly observed or
experienced the fact. For example, if the fact can be seen, the witness must
have seen it personally; if it is something heard, the witness must have heard
it.
– Importance of Examination: Section 55 emphasizes that oral evidence must
be examined in court. Witnesses can be cross-examined to test their
credibility, perception, and memory.

Oral evidence is crucial in many cases, especially criminal trials, but it can
also be unreliable due to human error, false memory, or intentional deceit.

2. Documentary Evidence (Sections 56 to 73)

Documentary evidence includes any written or recorded material presented to

the court. This can include traditional documents like contracts, letters, or
wills, as well as modern digital documents.

– Primary Documentary Evidence: As per Section 56, original documents are

considered primary evidence. The courts prefer the presentation of the
original document to avoid any issues of forgery or tampering.

– Secondary Documentary Evidence: If the original document is unavailable

for legitimate reasons (e.g., lost or destroyed), secondary evidence, such as
certified copies, can be presented under Section 73. However, secondary
evidence is accepted only when the original cannot be reasonably produced.

– Electronic Documents: The Bhartiya Sakshya Adhiniyam, 2023, expands the

definition of documentary evidence to include electronic records, such as
emails, digital contracts, and data stored in electronic devices.

Documentary evidence, whether in written or electronic form, carries

significant weight in court, especially when it involves official records or
agreements.

3. Real Evidence (Physical Evidence)

Real evidence refers to physical objects that can be inspected by the court.
This includes items like weapons, bloodstained clothing, or any other object
that can directly connect a person to a crime or event.

– Forensic Importance: Real evidence is often supported by forensic analysis,

such as DNA testing or ballistics, which can establish a direct link between the
accused and the crime scene.
– Chain of Custody: To ensure the reliability of real evidence, it is crucial to
maintain a proper chain of custody, which tracks the handling of the evidence
from the time of collection to its presentation in court. Any break in this chain
can cast doubt on the evidence’s integrity.

Real evidence provides a tangible connection to the facts in dispute and often
serves as compelling proof in both civil and criminal cases.

4. Electronic and Digital Evidence (Sections 62 and 63)

In the modern era, digital and electronic evidence has become crucial in legal
proceedings. The BSA, 2023, recognizes the importance of electronic
records, such as emails, SMS, social media posts, CCTV footage, and digital
files.

– Admissibility of Electronic Evidence: Sections 62 and 63 lay down the

conditions for the admissibility of electronic records. Section 63, in particular,
requires a certificate to verify the authenticity of electronic records to prevent
manipulation or tampering.

– Cybersecurity Considerations: With the rise of cybercrimes and the

increased reliance on digital transactions, courts must carefully examine
electronic evidence for credibility and reliability. Expert testimony is often
required to verify the source and integrity of electronic data.

Electronic evidence has played a crucial role in many cases, especially in

areas like fraud, defamation, and contract disputes where digital
communication is key.

5. Hearsay Evidence

Hearsay evidence refers to statements made outside the court, which are
brought into the court to prove the truth of the matter stated. Generally,
hearsay evidence is inadmissible because the court cannot test its veracity
through cross-examination.

– Exceptions to Hearsay Rule: However, certain exceptions allow hearsay

evidence, such as dying declarations (Section 26), statements made in the
course of professional duty, or res gestae (statements made during the
occurrence of an event).

Hearsay is excluded in most cases as it is considered unreliable due to the

inability to cross-examine the original speaker.

6. Circumstantial Evidence

Circumstantial evidence is indirect evidence that requires the court to infer a

fact based on the surrounding circumstances. Unlike direct evidence,
circumstantial evidence does not directly prove a fact but relies on a series of
inferences.

– Importance in Criminal Trials: Circumstantial evidence often plays a crucial

role in criminal cases. If the circumstances presented are consistent and lead
unerringly to the guilt of the accused, it can be the basis for conviction.

– Famous Case: The infamous “Aarushi Talwar” case in India heavily relied on
circumstantial evidence, as there were no direct witnesses to the crime.

Circumstantial evidence can be powerful if it forms a consistent and unbroken

chain leading to only one logical conclusion.

Conclusion

The Bhartiya Sakshya Adhiniyam, 2023, marks a significant shift in the legal
landscape of India, updating and modernizing evidence law to keep pace with
technological advancements and new forms of communication. The various
types of evidence, including oral, documentary, real, electronic, and
circumstantial evidence, play a crucial role in ensuring that justice is served
based on facts, not speculation. The recognition of electronic and digital
evidence is a particularly important development, as courts must now handle
cases involving everything from social media posts to digital contracts. By
providing clear rules on the admissibility and handling of evidence, the BSA,
2023, strengthens the framework for a fair and efficient judicial process in
India .