The facts may either be proved by oral evidence or documentary evidence. Documentary evidence is the second way of proving the facts.

The term “documentary evidence” is defined under section 3 of the Indian Evidence Act. However, the provisions related to documentary evidence are given under sections 61 to 90A of Chapter 5 of the Evidence Act.

In the new Bharatiya Sakshya Adhiniyam, 2023, documentary evidence is mentioned primarily under Chapter 5.

Definition of Documentary Evidence

According to section 3 of the law of evidence, documentary evidence is the documents produced for the court’s inspection. Additionally, anything with a permanent record of a relevant fact or a fact in question is referred to as a document in this context. The document should not be interpreted in a restrictive manner.

For example, a map and photographs are documents. Recorded tapes are also considered documents, and hence, they can be presented as documentary evidence before the court.

Kinds of Documents

The evidence presented in the court for the inspection in writing or written format is considered documentary evidence. The documentary evidence is basically of two types:

1. Private Documents
2. Public Documents

Private Documents

Section 75 of the Evidence Act provides that all documents other than public documents are private documents. Basically, documents that do not come under the purview of section 76 of the Evidence Act are private documents.

Public Documents

The documents that a public official has verified are considered public documents. As given in section 74 of the Evidence Act, public documents are the documents that represent the acts or records of the acts of the sovereign authority or official bodies and tribunals or public officials, including legislative, judicial and executive of any portion of India, the Commonwealth, or a foreign nation. It also includes any private documents that are registered in public offices as public documents.

Public documents are always proved by certified copies, i.e. secondary evidence.

Related Law Note: 7 Differences Between Public and Private Documents

Proof of Contents of Documents

Section 61 of the law of evidence contains provisions about proof of contents of documents. Accordingly, the contents of the document can be proved by producing either:

1. Primary evidence, or
2. Secondary evidence

Related Law Note: What Is Primary And Secondary Evidence

Primary Evidence

The first method of proving the contents of the document is by producing the original document, i.e. the document itself. Primary evidence is defined under section 62 of the Evidence Act. Primary evidence contains:

1. The original document produced for the court’s inspection.
2. Each part of the document serves as primary evidence if the document is executed in several parts.
3. If a document is produced in several counterparts, each is the primary evidence against the party that signed it.
4. When several documents are introduced using a single, consistent method, such as printing, lithography, or photography, each is the primary evidence of the document’s contents.

Section 64 further provides the principle that the evidence must always be proved by producing primary evidence before the court.

Secondary Evidence

Secondary evidence, as defined in section 63 of the Evidence Act, includes certified copies of the original documents, mechanically created copies derived from the original documents, copies produced or compared from the original document, and counterparts of a document presented against the person who did not sign it. Oral statements of the document’s contents provided by a person who has personally viewed the document are also regarded as secondary documents.

Section 65 further provides the exception to the principle laid down in section 64 of the Evidence Act. As stated in section 64, evidence must always be proved by producing primary documents. However, section 65 contains some instances in which evidence can be proved even by producing secondary evidence.

The cases under which secondary evidence can be present before the court for inspection are:

1. When the original document appears or is in the ownership or control of a person against whom the evidence is sought, a person who is out of reach, immune from legal process, or otherwise legally obligated to produce the original document.
2. When the party against whom the document is to be proved has confirmed its existence, condition, or contents in writing.
3. When the original document is lost or destroyed, or when the party providing evidence cannot furnish it within a reasonable amount of time for any cause other than his fault or negligence.
4. When the document is immovable or cannot be moved conveniently, such as when writing is on a wall.
5. When the document is a public document.
6. When the document is such that it is permitted by the Evidence Act or any other law in India to be admissible as evidence.
7. When the document contains several accounts or other documents that cannot be appropriately examined in the court.

Further, if the original document is in the opponent’s control, he must be given notice to produce it. Secondary evidence will only be admitted if the opponent neglects the notice.

Where the original document is lost or destroyed, secondary evidence is only admitted when the loss or the destruction has been proved.

What Is Documentary Evidence?
Subhashini Parihar

Who Is a Witness

Witness is a person who witnesses any act or series of acts or a scene taking place. A witness may be any person who has the ability to perceive a fact through his senses. A competent witness may perceive any act from his eyes or ears or smell or sensation or touch or any other reasonable mode.

As per section 118 of the Indian Evidence Act, a competent witness is one who has the capacity and ability to understand the questions put to him by the court. If he has the understanding of questions and the ability to give rational answers, then he is a competent witness.

Any person can be a witness. There’s no restriction as to who can be a witness. A person, either male or female, a child or aged, can be a witness. The only restriction is that if a person does not understand the questions and is not able to answer rationally, then he is not a competent witness.

Types of Witness Under the Evidence Act

A witness may be classified into different categories. The mode or source of perceiving any act may not be similar. A person may see a thing or hear a thing. So it depends.

The six important types of witnesses are:

What Is Interested Witness

An interested witness is a person who wants the accused to be behind bars for the crime he committed. Any person may be an interested witness, like a friend of the prosecution, or any other person who wants the culprit to be punished.

For example, A is a family doctor of B. B is a person who has committed so many crimes but has never been caught in the hands of the law. And A, for the reason of being a doctor, always treated B for illness and injuries. Now, for a crime, B is tried in court. Here A can be an interested witness as to previous acts of B, which shall prove that he is a habitual offender. A is an interested witness here. He has no link or ties with the case but wants the culprit to be punished.

What Is Chance Witness

Any person who, by coincidence or chance, is present at the scene of a crime or is passing by the scene of a crime is called a chance witness. If such a person gives testimony in court, he is treated as a chance witness.

For example, A and B, renowned businessmen, are making a deal of drugs in an old house where no one resides or generally visits. C, a news reporter, passing through that lane, was once told about the meetings taking place there. So he reached there for a general inspection. As soon as C reaches there, he sees that A is holding a gun against B and kills B. Here, C is a chance witness. C was not supposed to be there, but by chance, he reached there and witnessed the crime scene.

What Is Stock Witness

The word stock means something which is stored or kept in for future use as per the availability. Stock witness is a person who remains at the backfoot of police and comes in front as per directions of police. Their testimony is not very reliable, and the court always opts not to stand on his testimony. Such witnesses are highly disfavored by the judges.

It is the court’s duty not to rely on or consider the testimony of a stock witness. The court must make possible attempts to sustain the prosecution case on other pieces of evidence, excluding stock witness evidence.

For example, A works for the police as a witness to the crime. If a crime takes place and the police or prosecution does not have any strong witness to support their case, then the police may invite A to give testimony in favour of the prosecution that he saw the accused committing a crime or any other testimony against the accused. Such kinds of witnesses are generally prosecution-favoured witnesses, and judges do not consider much to such stock witnesses.

What Is Eye Witness

A person who, from his eyes, witnesses any act or scene of the crime, is an eyewitness to that offence. An eye witness may be any person, like a stranger, relative, or any other person. From the perspective of evidence, an eyewitness is an important evidence in solving a case. It is generally said that anything can betray but not the eyes.

For example, A is a shopkeeper and sits in his shop till 12 midnight. One day, B and his brothers, in a feeling of revenge, reach C’s place. B and his brothers push C out of his house and beat him very badly. After some time, C’s head starts bleeding. Looking at it, B and his brothers ran away from the place, leaving C on the floor. Here, A, a shopkeeper, is an eyewitness who saw the crime taking place and can give testimony against B in court.

Related: Statement of Eye Witness or Opinion of Doctor? What Matters More in a Rape Case

What Is an Official Witness

When a person from the police force gives testimony in a court of law, it is an official witness. It is termed an official witness because a person on duty gives evidence in favour of the prosecution. It is said that evidence of the police witness should not be discarded merely because a person belongs to the police force, and therefore he can be biased towards prosecution in making the case strong. His credibility cannot be doubted in this manner.

The court must scrutinize the witness strictly in accordance with the law, and if his testimony corroborates with the other pieces of evidence, then it is no harm in accepting it. If the official witness is trustworthy and credible, there is no reason for denial.

For example, A, a respectable police officer on night duty, saw a drunk man running towards a lane. A follows that man. The moment A reaches there, he sees that a drunk man has attacked his wife with a knife, and his wife is lying down on the ground. Here, A can be an official witness, and his testimony can be relied on if corroborated with other pieces of evidence after strict scrutiny.

What Is Related Witness

If a person to be a witness in court is a relative of the person who called him to be produced as a witness, he is a related witness. When a person is related to a person, his statement shall not be discarded or rejected due to the reason that he is his relative, and he may be biased in the case. It should not be presumed that a related witness will always favour his relative and not the truth.

If, after strict scrutiny, a related witness seems to be trustworthy and credible in giving testimony, then his evidence must be appreciated in court.

For example, Any person like a husband, wife, sister, brother, mother, father, or any relative of a person can be a related witness. If a person is related to the party, then general prudence says that the testimony of such a person must be construed strictly, and every attempt must be made to bring out the truth.

Read Next:

• 2 Modes of Impeaching the Credit of Witness
• Difference Between Ordinary Witness and Expert Witness

Witness and Types of Witness Under Indian Evidence Act
WritingLaw

Generally, a person who has seen or knows the happening of the crime or offence is known as a witness. A witness is a person who testifies in court to support a claim of fact. A famous scholar, Bentham regarded the witnesses as eyes and ears of justice.

Generally, any person who can understand a fact with their senses qualifies as a witness. Section 118 of the Indian Evidence Act describes who may testify.

This law note helps you learn about the competency of the witnesses under the law of evidence in India.

Competency of Witnesses

The provision related to the competency of witnesses is provided under section 118 of the Indian Evidence Act. In the new Bharatiya Sakshya Adhiniyam of 2023, who may testify is mentioned under section 124 of Chapter IX.

Accordingly, everyone is qualified to testify unless the court determines that he cannot comprehend the questions posed to him or provide reasonable responses. The person may be unable to understand the question or to answer it due to the result of immaturity, extreme old age, physical or mental illness, or any other similar cause.

The Act does not declare anybody incompetent to appear as a witness. It is entirely at the judge’s discretion to determine whether thinness can comprehend the questions and give a fair answer.

Competency of Child Witness

A child can testify as a witness if the court is satisfied that the child is competent to comprehend the question posed before him and provides the court with reasonable responses. There is no specific legal age for testifying as a witness about understanding. A child, however, cannot affirm the statements made in an affidavit and is incompetent to swear to an affidavit.

Voir dire test: The court does this test to check a child’s competency. The court asks preliminary questions to the child not relating to the case to check whether the child can understand the question and give a rational answer, such as what your father’s name is, in which school you study, what subjects you read, and so on.

Competency of a Person of Unsound Mind

According to section 118 of the law of evidence, someone who has a mental illness is not necessarily incompetent until their illness limits them from understanding and responding to questions in a reasonable manner. Similarly, a lunatic is not qualified to testify until his insanity prevents him from comprehending the questions and reasonably responding to them.

Competency of Judges and Magistrates

A judge or magistrate is a competent witness who can testify on a crucial fact even if it occurred before him while serving as a judge or magistrate. However, a judge has a privilege concerning competency. According to section 121 of the Evidence Act, a judge cannot be questioned and forced to answer about his judicial actions or anything he observed in court. However, he is subject to examination on the matters that occurred in the court in his presence, and he witnessed them while acting as judge or magistrate.

Witness Unable to Communicate Verbally

According to section 119 of the Indian Evidence Act, a witness who cannot speak may provide his testimony in any other way that will allow it to be understood. It might be expressed by writing or hand gestures. However, such writing must be written and signed in an open court.

Further, if the witness cannot speak verbally, the court may use an interpreter or a special educator to help record the testimony. However, in that case, the statement must be videotaped.

Competency of Witness to Testify in a Court in India
Subhashini Parihar

The existence of evidence strengthens the administration of justice. Anything that proves the subject matter to a court of law is considered evidence. A fact can be proved either by oral evidence or documentary evidence.

Oral evidence is when a fact is proved by presenting witnesses who can testify to it. Documentary evidence is used to prove a fact in an issue by producing a document that records the fact.

Here is an article that talks about the oral evidence in detail.

Meaning of Oral Evidence

Sections 59 and 60 of Chapter IV of the Indian Evidence Act provide for oral evidence. However, section 3 of the Evidence Act defines oral evidence. In the new Bharatiya Sakshya Adhiniyam, 2023, oral evidence is mentioned under Chapter IV.

Oral evidence, in general, refers to evidence provided orally by witnesses. A witness who cannot speak can still communicate the facts to the court via writing or gestures, and it’s considered oral evidence.

According to section 3 of the Evidence Act, oral evidence is any evidence that witnesses are allowed or required to provide orally in front of the court regarding the issue at hand.

In Queen-Empress vs Abdullah, a woman’s throat was cut, making her unable to speak. However, she gave the name of the attacker by using hand gestures, and this was considered to be oral evidence that was relevant to a dying declaration.

Rule With Regards to Oral Evidence

As section 60 of the Evidence Act provides, the oral evidence must be direct in all cases. This means that the witness can only present the facts of which he has firsthand knowledge.

Section 60 provides the four major principles for oral evidence. Until and unless they are proved, the evidence would not be admissible as oral evidence.

1. If the fact in issue could be seen, the evidence must be presented by such witnesses who have seen the crime or issue themselves. Illustration: A has seen B entering C’s house and coming out, committing theft. Here, no person other than A can give oral evidence.

2. If the fact in issue could be heard, the evidence must be presented by witnesses who have listened to it. Illustration: A has heard the sound of a quarrel in his neighbour B’s house, and in the evening, B’s wife C has been admitted to hospital with several injuries. Here, the evidence given by A will only be admissible as oral evidence.

3. If the fact in issue can be perceived in any other sense, the evidence can only be given by witnesses who have sensed it. Illustration: A finds the behaviour of B very odd around C, who is B’s friend, and later C is found dead. Only the evidence given by A will be admissible as oral evidence.

4. If the fact in issue depends on the opinion, it must be presented by witnesses who have that opinion. Illustration: If A thinks B is responsible for the theft committed in C’s house, only A’s personal opinion will be admissible as oral evidence.

Hearsay Evidence

Hearsay refers to information obtained or heard from another person. Hearsay evidence is not firsthand knowledge of a person concerning a matter or issue but what he hears about that particular matter from another person.

As hearsay is not directly obtained evidence, it is not considered admissible as oral evidence.

Exceptions to the Rule “Oral Evidence Must Be Direct”

Section 60 of the Evidence Act says that oral evidence must be direct. However, there are certain conditions under which the evidence, though hearsay, is admissible as oral evidence. These are:

1. Res Gestae
2. Admissions and confessions
3. Dying declarations
4. Evidence in the former proceedings

Res Gestae

As given by section 6 of the Evidence Act, if the statement of a person is a part of the same transaction, such statement can be proved by another person who appears as a witness. Here, even though it is hearsay evidence, which means indirect evidence, it is admissible as oral evidence. You can learn more about res gestae in our separate law note.

Admission and Confession

Any admission of liability or confession of guilt made outside of court can be proved by the evidence of the witness to whom it was made. Provisions related to admission and confession are given under sections 17 and 24-30 of the Indian Evidence Act, respectively.

Dying Declaration

According to section 32(1) of the Evidence Act, every information the deceased person passes on to another person is admissible if that person comes as a witness and testifies in court. You can learn more about it in this law note.

Evidence in the Former Proceedings

The evidence presented as a witness in a prior proceeding can be used as evidence in any subsequent proceeding involving the same parties because the witness has passed away or is otherwise unavailable.

Oral Evidence Under the Law of Evidence
Subhashini Parihar

This law note provides an overview of the Bharatiya Sakshya Adhiniyam, a transformative legislation introduced in 2023 to amend the Indian Evidence Act of 1872. It outlines key provisions, salient features, and notable changes, as well as highlighting criticisms and the need for careful implementation. The legislative initiative is presented as a landmark step toward aligning the Indian legal system with contemporary needs and technological advancements.

Introduction

The Indian Evidence Act of 1872, enacted to consolidate laws related to evidence for court proceedings, has been a foundational element in the Indian legal system. However, the evolving landscape of Indian democracy, marked by seven decades of experience, necessitates a thorough reevaluation of criminal laws, including the Indian Evidence Act, aligning them with contemporary needs and societal aspirations.

Recognizing the inadequacies of the existing law to address technological advancements, the proposed legislation, “Bharatiya Sakshya Adhiniyam,” introduces significant amendments.

Noteworthy provisions include:

• Incorporating electronically given information in the definition of evidence.
• Granting electronic or digital records the same legal standing as paper records.
• Expanding the scope of secondary evidence to accommodate modern processes.
• Imposing limits on admissible facts with precise and uniform rules for court practices.

This legislative initiative reflects a forward-looking approach to ensure the efficacy and relevance of evidence laws in the digital age.

Transformative Legislation Introduced by Union Home Minister Amit Shah in 2023

Union Home Minister Amit Shah presented three crucial bills in Parliament on August 11, 2023, signalling a transformative overhaul of India’s criminal justice system. These bills, namely the Bharatiya Nyaya Sanhita Bill, 2023; the Bharatiya Sakshya Bill, 2023; and the Bharatiya Nagrik Suraksha Sanhita Bill, 2023, aim to replace the antiquated British-era Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and the Indian Evidence Act.

The proposed changes, meticulously crafted by the Committee for Reforms in Criminal Laws under the Ministry of Home Affairs, target offences related to terrorism, crimes against women, corruption in elections, and acts against the state.

These bills were introduced during the last day of the monsoon session, designed to usher in a paradigm shift, ensuring expeditious justice, bolstering evidence integrity for higher conviction rates, and reducing case pendency. The bills were then forwarded to the Parliamentary Standing Committee for further deliberations, reflecting a commitment to thorough examination and scrutiny.

Brief History of the Bharatiya Sakshya Bill, 2023 (BSB) to the Bharatiya Sakshya Adhiniyam, 2023 (BSA)

The Bharatiya Sakshya Bill, 2023 (BSB) underwent a legislative process, starting with its introduction in August 2023, withdrawal in December 2023, and subsequent replacement by the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which was passed in both houses and received presidential assent on December 25, 2023, aiming to consolidate rules and principles of evidence for fair trial, thereby repealing the Indian Evidence Act, 1872. Here are three small tables presenting these facts.

The Bharatiya Sakshya Bill, 2023 (BSB)

The Bharatiya Sakshya (Second) Bill, 2023

The Bharatiya Sakshya Adhiniyam, 2023

Structure of Bharatiya Sakshya Adhiniyam, 2023

Total Sections: 170

Total Parts: 4

• Part 1: Preliminary (Sections 1 to 2)
• Part 2: Relevancy (Sections 3 to 50)
• Part 3: On Proof (Sections 51 to 103)
• Part 4: Production and Effect of Evidence (Sections 104 to 170)

Total Chapters: 12

• Chapter 1: Preliminary (Sections 1 to 2)
• Chapter 2: Relevancy of Facts (Sections 3 to 50)
• Chapter 3: Facts Which Need Not Be Proved (Sections 51 to 53)
• Chapter 4: Oral Evidence (Sections 54 to 55)
• Chapter 5: Documentary Evidence (Sections 56 to 93)
• Chapter 6: Exclusion of Oral Evidence By Documentary Evidence (Sections 94 to 103)
• Chapter 7: Burden of Proof (Sections 104 to 120)
• Chapter 8: Estoppel (Sections 121 to 123)
• Chapter 9: Witnesses (Sections 124 to 139)
• Chapter 10: Examination of Witnesses (Sections 140 to 168)
• Chapter 11: Improper Admission and Rejection of Evidence (Section 169)
• Chapter 12: Repeal and Savings (Section 170)

Total Schedule: 1

Salient Features / Key Changes / Key Amendments in Bharatiya Sakshya Adhiniyam, 2023

The new Act introduces significant amendments, including updates to existing sections and marking a comprehensive overhaul of evidence rules in alignment with contemporary legal requirements. Here are the salient features of Bharatiya Sakshya Adhiniyam, 2023:

1. Section Count Increase

The new legislation will comprise 170 sections, marking an increase from the previous 167 sections of the Indian Evidence Act, 1872.

2. Section Updates

Notably, 23 sections from the existing law (The Indian Evidence Act, 1872) will undergo updates, reflecting a comprehensive revision to align with contemporary legal needs.

3. Addition of New Section

The Bharatiya Sakshya Adniniyam introduces a new section, emphasizing the dynamic nature of the legal framework and the need for specificity in certain areas.

4. Section Deletions

Five sections have been removed from the old law (The Indian Evidence Act, 1872), streamlining the legal content and potentially eliminating obsolete or redundant provisions.

5. Removal of Specific Terms

The new law omits certain terms such as “Her Majesty Queen,” “Parliament of UK,” “London Gazette,” “Commonwealth,” “Court of Justice in England,” and “British Crown,” signalling a departure from references that may no longer be relevant.

6. Documentary Evidence

Under the Indian Evidence Act (IEA), documents include writing, maps, and caricatures. The Bharatiya Sakshya Adhiniyam (BSA) expands this definition to include electronic records. Documentary evidence is classified into primary and secondary evidence, where primary evidence involves original documents, including electronic records and video recordings. Secondary evidence encompasses documents and oral accounts proving the contents of the original, a classification retained by the BSA.

7. Oral Evidence

While the Indian Evidence Act confines oral evidence to statements made before courts, the Bharatiya Sakshya Adhiniyam of 2023 introduces the possibility of giving oral evidence electronically. This innovation allows witnesses, accused persons, and victims to testify electronically.

8. Admissibility of Electronic or Digital Records

Documentary evidence, according to the Bharatiya Sakshya Adhiniyam, now includes information in electronic records stored in various media, expanding to semiconductor memory and communication devices like smartphones and laptops. The Bharatiya Sakshya Adhiniyam asserts that electronic or digital records will hold the same legal weight as paper records, encompassing emails, server logs, locational evidence, and voice mails.

9. Expansion of Secondary Evidence

The Bharatiya Sakshya Adhiniyam broadens secondary evidence to include oral and written admissions and testimony from a person skilled in document examination. Additionally, it specifies that secondary evidence may be required not only when the original is inaccessible or destroyed but also when the genuineness of the document is in question.

10. Joint Trials

Addressing joint trials, the Bharatiya Sakshya Adhiniyam clarifies the treatment of a trial involving multiple persons when an accused has absconded or not responded to an arrest warrant. It explains that such a situation will be considered a joint trial, clarifying the Indian Evidence Act’s provisions on confessions affecting multiple accused parties.

Criticism

While the Bharatiya Sakshya Adhiniyam, 2023, reflects a commendable effort to modernize the Indian Evidence Act of 1872 and adapt it to contemporary needs, a few aspects warrant critical consideration. Here are four such examples.

1. Rapid Legislative Process

The introduction, passage, and enactment of the legislation within a short timeframe may raise concerns about the thoroughness of the deliberative process. This significant overhaul requires comprehensive scrutiny and stakeholder input to ensure well-informed decisions.

2. Lack of Public Consultation

The absence of extensive public consultations or open discussions on the proposed changes raises questions about the inclusivity of the legislative process. Public input is crucial for laws that profoundly impact society and justice systems.

3. Rapid Technological Integration

While acknowledging the need to incorporate electronic evidence, the pace of technological integration in legal proceedings should be managed cautiously to avoid potential challenges related to access, security, and understanding for all stakeholders.

4. Paradigm Shift Impact

The ambitious goal of bringing about a paradigm shift in the justice system, though laudable, necessitates careful implementation and monitoring to gauge its impact on expeditious justice, evidence integrity, and case pendency.

Conclusion

The Bharatiya Sakshya Adhiniyam, 2023, emerges as a landmark legislation, steering the Indian legal system into the digital age with comprehensive amendments to the Indian Evidence Act of 1872.

The new Act, enacted on December 25, 2023, not only increases section count but also signifies a meticulous process of updates, deletions, and additions, aiming to align the legal framework with contemporary needs.

The removal of specific terms and the embrace of electronic evidence underscore the legislature’s recognition of technological advancements.

Salient features, such as expanding secondary evidence and clarifications on joint trials, reflect a commitment to precision and fairness in legal proceedings. This legislative initiative encapsulates a forward-looking approach, emphasizing the adaptability of the legal system to societal and technological transformations for a fair and effective administration of justice.

Related:

• Overview of Bharatiya Nagarik Suraksha Sanhita, 2023
• Overview of Bharatiya Nyaya Sanhita, 2023

Overview of Bharatiya Sakshya Adhiniyam, 2023
Dinesh Verma

The Indian Evidence Act helps us understand what counts as a “fact” in the legal world. It doesn’t just include physical things; it also looks at what happens in the world and what people think and feel inside their minds. In simpler terms, it sets the rules for considering different types of information in legal matters.

This law note will help you understand the concept of relevant facts under the Indian Evidence Act.

What Is Relevancy?

Relevancy is the broader scope. The facts must connect in a way that makes sense and helps the court conclude the case. Facts might be linked by:

• Cause and effect: A witness sees Z arguing with B, and B is found injured – relevant!
• Common experience: Someone buys life insurance a week before dying – suspicious and relevant!
• Correlation: Sales of raincoats increase when the weather forecast predicts rain – not necessarily relevant to a specific lawsuit.

The court has some discretion in judging relevancy, like deciding which boxes in the attic to open first.

Related: Difference Between Relevant Facts and Relevancy of Facts

Act Influenced in Relevancy

Section 3 of the Indian Evidence Act of 1872 defines “evidence.” It includes remarks or documents produced before the court by witnesses addressing the main issue under investigation. The Indian Evidence Act does not distinguish between admissibility and relevancy.

Section 5 of the Indian Evidence Act states that evidence may be used in any judicial matter to demonstrate the presence or absence of facts in dispute and additional facts deemed significant as described below, but not beyond. The decision of relevance is based on logic and likelihood considerations, which guide the admissibility of evidence.

Section 6 of the Indian Evidence Act states that facts that are not directly under examination but are connected with a relevant fact to the extent that they form part of the same transaction, whether they occurred concurrently or at various times and places, are likewise relevant. This includes actions and omissions, which do not have to be continuous but should add to the overall context of the transaction.

Section 6 of the Act defines “Res Gestae” as a legal notion that denotes an action or event.

Sections 6 to 16 cover facts related to the topic, such as causality, motive, and direct significance.

Sections 17 to 31 of the Act govern confessions, whereas sections 40 to 44 govern the applicability of court rulings.

Sections 45 to 51 discuss when third-party opinions are relevant.

Sections 52 to 55 of the Act further identify scenarios in which a person’s character is significant.

If a link between the facts does not exist, as stated above, the fact is regarded as irrelevant. A court may, however, reject relevant evidence if the possible hazards outweigh the probative value of the evidence. Such hazards include unfair bias, confusion of issues, misleading the jury, unnecessary delays, or inappropriate inclusion of cumulative evidence.

Difference Between Relevancy and Admissibility

This section examines the distinctions between admissibility and relevancy, highlighting some of their distinctive features.

Definition of Relevancy and Admissibility

• Relevance: The logical and consequential connection between facts is referred to as relevance, and the existence or non-existence of one set of facts is most likely dependent on the regular course of events or human behaviour. It is based on the intrinsic relationship of facts, emphasising their logical connectedness.
• Admissibility: On the other hand, admissibility refers to the legal significance of facts proclaimed under the Indian Evidence Act. It refers to the admissibility of evidence in court, which is established by obedience to legal norms rather than inherent logical links.

Case – Ram Bihari v State of Bihar [(1998) 4 SCC 517]: The Supreme Court noted that while admissibility and relevancy are synonymous in this instance, their legal meanings differ, and the admissible facts might not be relevant.

Basis of Relevancy and Admissibility

• Relevance: The basis for determining relevancy is reasoning and human experience. It is founded on the connection of facts and the awareness that certain facts increase or decrease the likelihood of the existence of others.
• Admissibility: Legal principles govern admissibility. It is assessed by their compliance with the legal requirements stated in the Evidence Act rather than their inherent link between facts.

Legal Framework

• Relevance: Provisions related to relevancy are covered in detail in sections 5 to 55 of the Indian Evidence Act. These sections describe the many ways in which facts can be related and serve as the foundation for determining relevance.
• Admissibility: Section 56 of the Indian Evidence Act primarily discusses the legal context for admissibility. This section defines the standards determining whether evidence is legally admissible in a court of law.

Conclusion

The judiciary uses the law of evidence as a crucial instrument to help it filter through and weave together the large amount of information that each case offers. Evidence that is admissible and has evidentiary value is limited to that which is covered under the Indian Evidence Act of 1872.

In addition to saving the court’s time, this enables the court to obtain the pertinent and accurate evidence it needs to decide a matter easily. The Indian Evidence Act contains an interpretation and definitions in section 3 that explains words and ideas important for understanding the Act and evidence law.

Relevant Facts Under the Indian Evidence Act
Anushka Saxena

The Indian Evidence Act of 1872 is considered one of the most fundamental laws for Judicial officers to adjudicate a case. Therefore, it is a must to understand the basics of such an important law.

This brief law note deals with the fundamental key points of the Indian Evidence Act that a law student or advocate must keep in mind.

Let us take a look at it.

Must See: An Overview of Bharatiya Sakshya Adhiniyam, 2023

Meaning and Purpose of Evidence

In simple terms, evidence refers to the proof or something that furnishes proof.

The purpose of the Evidence Act is to make the probability of the existence or non-existence of any fact so high that everyone can believe its existence or non-existence.

Features of the Indian Evidence Act, 1872

Besides being lex fori (Law of the forum), the Evidence Act has the following other features:

Adjective law: The Indian Evidence Act is considered the adjective law, which means it is the combination of both substantive and procedural law. Note that for competitive exams, it is considered a procedural law.

Drafted: The Indian Evidence Act was drafted by Sir James Fitzjames Stephen.

Preamble: The preamble to the Indian Evidence Act explains the law of evidence as to consolidate, define and amend.

Principles: The Evidence Act works on three essential principles, those are:

1. Evidence must be confined to the matter in issue, i.e., Facts in issue.
2. Hearsay evidence must not be admitted.
3. Best evidence must be given in all cases.

Applicability and Non-Applicability of the Indian Evidence Act

The application of the Indian Evidence Act is dealt with under section 1 of the Act.

According to section 1 of IEA, the Act extends to the whole of India. From 31st October 2019, it extended to the State of Jammu & Kashmir as well, by the Jammu & Kashmir Recognition Act, 2019.

It applies to all judicial proceedings in all the courts, including court-martials.

Judicial proceedings refer to the proceedings where the evidence is legally taken on oath.

However, it does not apply to the court-martials convened under the following:

1. Contempt proceedings, poceedings under the Income Tax Act, proceedings under the Industrial Act, preparing of inquest report in case of unnatural death in prison.
2. The Army Act
3. The Naval Discipline Act
4. The Indian Navy (Discipline) Act, 1934
5. The Air Force Act
6. Affidavits presented to any court or officer (Based on personal knowledge)
7. Proceedings before an Arbitrator (Based on the principle of natural justice)

Structure of the Act

The structure of the Indian Evidence Act is as follows:

• It came into force on 1 September 1872.
• Its citation is Act No. 1 of 1872.
• Extension: To the whole of India.
• Total parts: 3
• Total number of chapters: 11
• Total sections: 167

It’s Parts include:

• Part I: Sections 1 to 55
• Part II: Sections 56 to 100
• Part III: Sections 101 to 167

Repealed

On 25th December 2023, the Indian President gave her approval to repeal the Indian Evidence Act of 1872 with the new Bharatiya Sakshya Adhiniyam, 2023.

General Introduction to the Indian Evidence Act, 1872
Ankita Soni

In this law note, you will read about hostile witness as per the Indian Evidence Act of 1872.

Who Is a Hostile Witness?

A witness becomes hostile when he makes a statement against the interests of the party who called him. When the party’s own witness denies giving a statement in his favour before the court, then it is said that the witness has become hostile.

There can be many reasons for becoming a hostile witness. It may be the reason that the other party is threatening the witness. Or he is in fear that if he gives a statement against the accused, his life will be in danger or any other reason, implanting a sense of threat in the mind of the witness.

Can a Party Cross-Examine Its Own Witness?

Section 154 of the Indian Evidence Act talks about the hostile witness. This section enables the court to permit the party to cross-examine his own witness, who has become hostile.

The general rule is that a party can cross-examine opposite-party witnesses, but it is an exception to this rule. If the witness becomes hostile, then the party may cross-examine its own witness with the permission of the court.

It’s the discretionary power of the court to permit the party to cross-examine its own witness. If the court is satisfied with the fact that, in the interest of justice and fair hearing, the party must be allowed to cross-examine, then only the court permits it.

What Can Be Asked in Cross Examination of Hostile Witness?

If the witness of the party turns hostile, he may be asked:

1. Leading questions under section 143 of the Evidence Act to testify his truthfulness.
2. Questions related to previous statements given in writing under section 145 of the Evidence Act. This section permits contradiction as to former statements in writing.
3. Questions that tend to test the veracity of the witness and his status in life under section 146 of the Evidence Act.

Evidentiary Value of Hostile Witness

If the witness turns hostile and gives a statement against the party who calls him, then what would be the credibility of such a statement made by the hostile witness in the court?

Satpal vs Delhi Administration (1975)

In this case, the Indian Supreme Court said that merely because the prosecution has chosen to treat his witness as a hostile witness, it cannot make the evidence of such a witness totally null.

The court said that if the witness proves to be an unfavourable witness who has failed in proving a fact, then the evidence of such a witness can’t be effaced. The court can still rely on and appreciate the statement made by the hostile witness. It can be accepted as evidence to the extent that the statement is found to be credible or authentic and inspires credit.

Atmaram and Ors vs State of MP (2012)

The Supreme Court, in this case, very clearly stated that inconsistency in the statement of the prosecution’s witness case cannot make the whole statement invalid. If the judge feels that the character of the witness has not been completely shaken or that his credit is still worthy of trust, then with due care and caution, such statement or evidence may be accepted by the court.

But if the whole of the testimony of a hostile witness stands in contradiction to every statement made earlier and is impugned, then such a statement can’t be treated as evidence in a court of law. The judge may, in his opinion, discard the evidence in toto.

Hemudan Nanbha Gadhvi vs State of Gujarat (2018)

The Supreme Court said that the court’s time is very precious, and if, because of any witness, the judicial proceedings are affected and subverted, then the court cannot remain silent on such behaviour of the witness. The court must make efforts to bring truthfulness to such a witness. Our justice system can’t let such witnesses divert the proceedings from reaching the truth.

If the witness gives testimony under any kind of threat or undue influence, the court must scrutinize it. Only credible and reliable evidence is appreciated in the court of law, not those that are tainted and unworthy of credit. Even section 193 of the Indian Penal Code imposes punishment on the witness for giving false evidence and shall be imprisoned for a term extending up to seven years with fine.

Read Next:
1. Difference Between Ordinary Witness and Expert Witness
2. Protection of Witnesses Under UAPA and NIAA in India

Who Is a Hostile Witness Under the Indian Evidence Act?
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What Is Hearsay Evidence

According to the Indian Evidence Act, hearsay evidence is no evidence. Hearsay evidence is not a direct evidence.

The word hearsay itself gives a clue that something which is not directly heard. Hearsay evidence means any information that a person gathers or collects from a person who has first-hand knowledge of that fact or information. Therefore, we can conclude that it is second-hand information.

The general rule is that hearsay evidence is not admissible in a court of law. Section 60 of the Evidence Act states that oral evidence must be direct. The person must directly hear, see, or sense the fact. For example:

1. I saw a woman running with a bloodied knife. The information is itself seen by the witness. It is admissible.
2. I heard from my watchman that a woman was running with a bloodied knife. It is hearsay evidence. Generally, it is not admissible in court.

5 Exceptions to the Rule of Hearsay Evidence

It is said that “hearsay evidence is no evidence.” Direct evidence is more reliable and acceptable in court. But there are some exceptions to this rule. Here are five instances when hearsay evidence is accepted by the court:

1. Res Gestae

The rule of res gestae means ‘the facts which form part of the same transaction.’ This rule is given under section 6 of the Indian Evidence Act. The statement of a person may be proved in court through another person who appears as a witness in court if the fact that he states in court forms a part of the same transaction.

2. Admission

Admission is also an exception to the rule that says hearsay evidence is no evidence. Section 17 of the Indian Evidence Act defines admission as a statement, either oral or in the form of a document or electronic form, which gives inference to any fact in issue.

If a person in the court makes a statement against his own interests, then the court accepts such a statement on the ground that a person shall never make a statement against his own interests.

3. Confessions

Confession means when a person admits his guilt in court. Confession has nowhere been defined in the Indian Evidence Act. Section 24 to section 30 of the Indian Evidence Act deals with the provisions relating to confession.

If a person gives an extra-judicial confession that is outside the court, it may be proved through the testimony of that person to whom such confession was made. Though the witness did not hear himself or see anything related to the offence. But the confession by a person may be proved through his testimony in court.

4. Dying Declaration

Section 32 of the Indian Evidence Act talks about the statement of a person who cannot be called as a witness in court.

There might be a situation when a person is on his deathbed or suffering from any disability due to which he cannot appear before the court. In such cases, if the person gives his statement to any other person relating to his death or cause of death, then the person to whom such statement has been transmitted may appear before the court as a witness and give hearsay evidence as to what he heard from the declarant.

For More: Dying Declaration Under the Indian Evidence Act

5. Evidence Given in Former Proceedings

If the person to be called as a witness dies or due to some other reason, is not able to appear before the court, then the statements given by such a person in former or previous proceedings may be used as a piece of evidence for proving the truth in subsequent proceedings.

Even the entries in books of accounts and public registers like official books are relevant statements that can be adduced before the court in matters of inquiry. Though the person may not be alive, the statements he made previously in books or official registers are admissible in court.

Read Next: What Is Doctrine of Exclusion of Hearsay Evidence

What Is Hearsay Evidence Under the Indian Evidence Act and Its Exceptions
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4. May Presume-

Whenever it is provided by this Act that 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.

Shall presume–

Whenever it s directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it disproved.

Conclusive proof–

When one fact is declared by this Act 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.

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