Bharatiya Sakshya Adhiniyam, 2023
(Evidence Law)
Unit – I
Evidence
• Preamble
• An Act to consolidate and to provide for general rules and
principles of evidence for fair trial.
• Short title, application and commencement
• 1. (1) This Act may be called the Bharatiya Sakshya Adhiniyam,
2023.
• (2) It applies to all judicial proceedings in or before any Court,
including Courts-martial, but not to affidavits presented to any
Court or officer, nor to proceedings before an arbitrator.
• (3) It shall come into force on such date as the Central
Government may, by notification in the Official Gazette,
appoint.
LEX FORI
• Explaining the place of the law of evidence as early as 1850,
the House of Lords observed:
• “The law of evidence is the lex fori which governs the courts;
whether a witness is competent or not; whether a certain fact
requires to be proved by writing or not; whether a certain
evidence proves a fact or not; that is to be determined by the
law of the country where the question arises, where the
remedy is sought to be enforced and where the court sits to
enforce it.”
• Judicial Proceeding
• Evidence Law applies to all judicial proceedings, am inquiry is
judicial if it is under an obligation to take evidence from both
sides, to hear both sides and then to formulate a judgment by
the use of discretion
• Such an inquiry has to be distinguished from an investigation
of facts or a fact-finding inquiry, in which only discovered facts
have to be recorded and there is to be no use of discretion
• The Act does not apply to affidavits because the deponent’s
assertion of facts on the basis of his personal knowledge does
not constitute evidence
• Arbitrators have to follow the principles of natural justice but
they are not bound by the law of evidence
• Acts which deal with Evidence
• [Section 2(1)] - Act denotes as well a series of acts as a single
act
• Court
• [Section 2(5)] - Court means a Judge who is empowered by
law to act judicially alone, or a body of Judges which is
empowered by law to act judicially as a body, when such Judge
or body of Judges is acting judicially
• Court Martial
• A military court - A court for people in the military who are
accused of breaking military law
• Tribunal
• Tribunals are judicial or quasi-judicial institutions established
by law.
• They intend to provide a platform for faster adjudication as
compared to traditional courts, as well as expertise on certain
subject matters.
• Commission of Inquiry
• The Commission of Enquiry is appointed for the purpose of
making an inquiry into any definite matter of public
importance and perform such functions accordingly.
• Arbitration
• Arbitration is a procedure in which a dispute is submitted, by
agreement of the parties, to one or more arbitrators who make a
binding decision on the dispute.
• In choosing arbitration, the parties opt for a private dispute
resolution procedure instead of going to court.
• Affidavits
• An affidavit is a sworn statement put in writing.
• When you use an affidavit, you're claiming that the information
within the document is true and correct to the best of your
knowledge.
• Like taking an oath in court, an affidavit is only valid when you
make it voluntarily and without any coercion.
• Contempt of Court
• Contempt of court is an act of disrespect or disobedience
toward a court or interference with its orderly process.
• Examples include disrupting court proceedings, interfering
with attempts to obtain evidence, destroying evidence,
disobeying a court order, and intimidating witnesses.
• Evidence Meaning & Kinds:
• Section 2(e) "evidence" means and includes—
• (i) statements or any information 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 or information are called oral evidence;
• (ii) documents including electronic or digital records produced
for the inspection of the Court and such documents are called
documentary evidence;
• The term evidence means anything by which any alleged
matter of fact is either established or disproved
• Anything that makes the thing in question evident to the court
is evidence
• Where the question is ‘whether an explosion took place
before the fire occurred’
• The noise of the explosion and its flash are evidence of it
• Person who saw the flash or heard the noise can give evidence
of the fact of the explosion
• 2 kinds of evidence – Oral and documentary evidence
(electronic records are included in both evidences)
• Even in criminal matters also there can be evidence by means
of electronic records, including video conferencing
• If the happening of a fact is recorded on anything apart from
human memory, that record is also an evidence of the
happening
• Where the delivery of goods under a contract is recorded in a
document, such as, a delivery book, that document is an
evidence of the fact of delivery
• According to the definition given in Section 2 of the BSA, 2023 the
term evidence means and includes oral account of the happening
of a fact given by those who have personally witnessed the
happening, e.g. those who have heard or seen the explosion and
• It also includes any document in which the happening of the fact
is recorded
• The SC has emphasized this fact that the definition clearly
suggests that it is an exhaustive definition
• Wherever the word “means and includes” are used, it is an
indication of the fact that the definition is a hard and fast
definition
• No other meaning can be assigned to the expression
• The given definition includes only two kinds of evidence i.e,
statement of witnesses and documents but this does not
mean that there cannot be any other kind of evidence
• E.g., When the Judge inspects the scene of occurrence and draws
a chart of it, that is also an evidence though it is neither an oral
statement of a witness nor a document produced by the parties.
But is a way it is a document
• The definition is exhaustive in this sense that every kind of
evidence can ultimately be reduced either to the category of
oral evidence or documentary evidence
• The definition does not mention admission or confession,
though the Law does regard them as relevant evidence.
• But even these can be put under one category or the other
• If an admission is oral its evidence will be given through the
mouth of a witness and then it will be oral evidence
• If it is in writing that will be a document
• Likewise, if a confession is made to the court itself, it will be
recorded and signed by the accused and so it becomes a
documentary evidence and if it is oral, it will remain oral
evidence
• Those definitions does not refer to the kind of evidence which is
known as Real Evidence in English Law
• This is a third category and refers to the material objects
produced for the inspection of the court and would include
objects like photographs, murder weapon, bloodstained
clothes, etc.
• In Indian Law, all these are included under the category of
documentary evidence
• A document means anything which is a permanent record of
the happening of a fact and a blood-stained instrument or cloth
is a record of some fact
• In Syed Md. Husain Aftiqar vs. Mirza F. Beg., it was held that
oral statement of witnesses become evidence only when the
right and opportunity is given to the opposite party to cross-
examine, failing which, they remain only bare statements
• In Ronny vs. State of Maharashtra it was held that, the
evidence in one case cannot be used as an evidence in
another case. The parties to the case may, however, agreed to
do so
• If a judge has any knowledge about the facts of a case, he
cannot use it as an evidence. He has to appear in the witness
box so as to bring his knowledge on record
• Hence, the word evidence in its relation to law includes all the
legal means exclusive of mere arguments which tend to prove
or disprove any fact the truth of which is submitted to judicial
investigation
• This term and the word ‘proof’ are often used as synonymous,
but the latter is applied by accurate logicians rather to the
effect of evidence, than to evidence itself
