Law of Evidence

By Nizam Azeez Sait
Alappuzha,
Advocate, High Court of Kerala.
Email- nizamazeezalpy@gmail.com
+919846151718 (WhatsApp)

Preface

Law of Evidence is an important area of law having day to day application in litigation. Thorough grasp over Law of Evidence is very essential for a litigation lawyer. Study of law of Evidence though challenging, is quite fascinating and engaging.

Because of its practical day to day application in litigation, Law of Evidence is a major subject in the Judicial Service and Public Prosecutor Exams.

Developing an inclination and studying this interesting subject reasonably well while in law college and in the initial years of practice will help shape you well as a Lawyer. Theoretical study and practical exposure in advocacy would complement each other and help you in expertise the subject.

This Descriptive study material/Commentary on the Law of Evidence is prepared mainly to cater the needs of Junior Lawyers, Judicial Service and Public Prosecutor Exams aspirants, and LLB Students.

This study material is divided into 28 topic wise modules spreading across over 1000 pages. The material is in tune with the new law on evidence ‘the Bharatiya Sakshya Sanhita 2023’.

The Bharatiya Sakshya Adhiniyam, 2023 was passed by the Parliament on December 21, 2023 and received the assent of the President on December 25, 2023.

On 24th February 2024 the Government through Ministry of Home Affairs issued notification specifying 1st day of July 2024 as the appointed date of commencement of the Bharatiya Sakshya Adhiniyam, 2023

The Indian Penal Code (IPC), 1860 and the Code of Criminal Procedure (CrPC), 1973 are also getting replaced by Bharatiya Nyaya Sanhita, 2023 and the Bharatiya Nagarik Suraksha Sanhita, 2023 respectively.

From the appointed date ie 1st of July 2024, The Bharatiya Sakshya Adhiniyam, 2023 will replace the long-standing Indian Evidence Act 1972.

With respect to the Bharatiya Sakshya Adhiniyam 2023, substance wise there aren’t much changes from the Indian Evidence Act 1972. All the time-tested basic concepts of our law of evidence remain the same and are retained.  The sections in the Indian Evidence Act have been re-arranged with a few changes here and there and a few otiose provisions have been omitted.

Because of this total overhauling, now the legal practitioners and students would be put to the daunting task of relearning the numbers of the sections in tune with the new Adhiniyam. This task of relearning the provisions cannot now be avoided by lawyers and academicians, as this new law is certain to come into force. The inconvenience will be never ending and will be for all time to come, as for the case law searches now one would always have to go back to the corresponding provisions/sections of the Indian Evidence Act 1872. For instance, the important provision relating to the relevancy of information to the police leading to discovery of fact under section 27 of the Evidence Act is now in the proviso to section 23 of the Bharatiya Sakshya Adhiniyam 2023 and presumption of fact in section 114 of the Evidence Act 1872 is now in section 119 of the Bharatiya Sakshya Adhiniyam 2023, without any significant change in substance.

Now there is no other go for a lawyer but to better equip oneself, to take up the challenge of coping up with the change. Hopefully, this material will be of immense help for Lawyers in such an exercise.

Most of the Judgments of the Supreme Court and the High Courts based on the Indian Evidence Act would retain its precedential authority as there are no substantial changes in content in important provisions in the new Adhiniyam. Throughout this study material important case laws are highlighted in appropriate places and the basic concepts are presented through relevant and important extracts from judgements of the Supreme Court and High Courts.

Wherever needed the Section numbers of the Indian Evidence Act 1872 are given along with that of the Bharatiya Sakshya Adhiniyam 2023. Likewise, in case law extracts based on the Evidence Act corresponding provision in the Bharatiya Sakshya Adhiniyam are also provided in brackets.

General index and module index are provided. Specific topics/ items are dealt with under sub headings. Therefore, a reader can easily access a particular topic/item he or she is looking for.

Model exercise questions are given at the end of every module, which will be helpful for law exam aspirants.

The readers may access each of the modules by clicking on the topic in the subject index given hereunder.

Readers may kindly point out any missed out significant points, important judgments, useful model questions and any other suggestions for improvement in the respective modules, so that, this study material could be enhanced in quality and make this more useful for its readers.

I dedicate this humble work of mine to the fond memories of Late Prof Shamnad Basheer, an extra ordinarily brilliant legal academician who selflessly did so much for empowering underprivileged and marginalised children through legal education through his organisation IDIA (Increasing Diversity by Increasing Access). Though I had never personally met Prof Shamnad, I admire him for his academic excellence, his selfless work and the lives he had touched and empowered and continue to do so through the organisation (IDIA) he found, though he went so soon.

Alappuzha,                                         Nizam Azeez Sait

28.2.2024.

 Option for Payment

The Author a small-town lawyer has put in a lot of effort in preparing this study material/commentary comprising 28 modules spreading across 1000 pages. If you feel that this material is useful for you, you may send your contributory remuneration to the following phonePe No or to the following Bank Account:

Phonepe No – 9846151718    QR code

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Name – Nizam. A, SB A/c No 30083188312, IFS Code SBIN0003054,

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Subject Index

  1. MODULE No. 1 – MEANING OF “EVIDENCE”, HISTORICAL DEVELOPMENT OF LAW OF EVIDENCE IN INDIA, GENERAL SCHEME OF THE BHARATIYA SAKSHYA ADHINIYAM 2023, AND ITS APPLICABILITY.
  1. MODULE No. 2 – INTERPRETATION CLAUSE – “FACT” “FACT IN ISSUE”, “ISSUE OF FACT” and “PROVED”, “DISAPROVED” “NOT PROVED”
  1. MODULE No. 3 – MEANINGS OF “RELEVANT” AND “RELEVANCY”, DISTINCTION BETWEEN “LOGICAL RELEVANCY AND LEGAL RELEVANCY”, DISTINCTION BETWEEN “RELEVANCY AND ADMISSIBALITY” AND PRIVILLEGED COMMUNICATIONS etc.
  1. MODULE No. 4 – RELEVANCY UNDER SECTIONS 4, 5 and 6 OF THE BHARATIYA SAKSHYA ADHINIYAM 2023 (6, 7 and 8 OF THE EVIDENCE ACT) – “Res Gestae”
  1. MODULE No. 5 – RELEVANCY OF FACTS WHICH ARE EXPLANATORY OR INTRODUCTORY OF THE OTHER RELEVANT FACTS, UNDER SECTION 7 OF THE BHARATIYA SAKSHYA ADHINIYAM 2023 (SECTION 9 OF THE EVIDENCE ACT) INCLUDING LAW RELATING TO IDENTIFICATION PARADE
  1. MODULE No. 6 – RELEVANCY OF THINGS SAID OR DONE BY CONSPIRATORS IN REFERENCE TO THEIR COMMON OBJECT, UNDER SECTION 8 OF THE BHARATIYA SAKSHYA ADHINIYAM 2023 (SECTION 10 OF THE EVIDENCE ACT)
  1. MODULE No. 7 – RELEVANCY UNDER SECTIONS 9 TO 15 OF THE BHARATIYA SAKSHYA ADHINIYAM 2023 (SECTIONS 11 TO 16 OF THE EVIDENCE ACT)
  1. MODULE No. 8 – ADMISSIONS IN GENERAL UNDER SECTIONS UNDER SECTIONS 15 TO 21 AND 25 OF THE BHARATIYA SAKSHYA ADHINIYAM 2023 (17 TO 23 AND 31 OF THE EVIDENCE ACT)
  1. MODULE No. 9 – CONFESSIONS IN GENERAL
  1. MODULE No. 10 – RELEVANCY OF INFORMATION AND DISCOVERY UNDER PROVISO TO SECTION 23 OF THE BHARATIYA SAKSHYA ADHINIYAM 2023 (SECTION 27 OF THE EVIDENCE ACT)
  1. MODULE No. 11 – CONFESSION OF THE CO-ACCUSED AND ACCOMPLICE’S EVIDENCE UNDER SECTIONS 24 AND 138 OF THE BHARATIYA SAKSHYA ADHINIYAM 2023 (SS 30 AND 133 OF THE EVIDENCE ACT)
  1. MODULE No. 12 – STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES INCLUDING DYING DECLARATION UNDER SECTIONS 26 AND 27 OF THE BHARATIYA SAKSHYA ADHINIYAM 2023 (SS 32 AND 33 OF THE EVIDENCE ACT).
  1. MODULE No. 13 – STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES UNDER SECTIONS 28 to 33 OF THE BHARATIYA SAKSHYA ADHINIYAM 2023(SS 34 AND 39 OF THE EVIDENCE ACT)
  1. MODULE No. 14 – RELEVANCY OF JUDGMENTS
  1. MODULE No. 15 – RELEVANCY OF OPINION – OPINION EVIDENCE
  1. MODULE No. 16 –  CHARACTER EVIDENCE
  1. MODULE No. 17 –  FACTS WHICH NEED NOT BE PROVED
  1. MODULE No. 18 – ORAL EVIDENCE
  1. MODULE No. 19 – DOCUMENTARY EVIDENCE
  1. MODULE No.20 – ADMISSIBILITY OF ELECTRONIC RECORDS
  1. MODULE No. 21 – MODE OF PROOF OF EXECUTION OF A DOCUMENT REQUIRED TO BE ATTESTED BY LAW
  1. MODULE No. 22 – PRESUMPTIONS
  1. MODULE No. 23 – EXCLUSION OF ORAL EVIDENCE BY DOCUMENTARY EVIDENCE
  1. MODULE No. 24 – BURDEN OF PROOF
  1. MODULE No. 25 – ESTOPPEL
  1. MODULE No. 26 – COMPETENCY AND COMPELLABILITY OF WITNESSES
  1. MODULE No. 27 – EXAMINATION OF WITNESSES
  1. MODULE No. 28 – APPRECIATION OF EVIDENCE IN GENERAL

Download PDF of all Modules

Annexures 

BHARATIYA SAKSHYA ADHINIYAM 2023 BARE ACT

THE INDIAN EVIDENCE ACT 1872 BARE ACT

COMPARATIVE CHART

Module Index

MODULE No. 1 – MEANING OF “EVIDENCE”, HISTORICAL DEVELOPMENT OF LAW OF EVIDENCE IN INDIA, GENERAL SCHEME OF THE BHARATIYA SAKSHYA ADHINIYAM 2023, AND ITS APPLICABILITY.

  1. Meaning of ‘EVIDENCE’
  1. Historical Development of the Law of Evidence in India
  1. Enactment of The Indian Evidence Act 1872
  1. The Indian Evidence Act – A Classic Legislation
  1. Enactment of The Bhartiya Sakshya Adhiniyam 2023
  1. Some Of the Changes in the Bhartiya Sakshya Adhiniyam at A Glance
  1. The Bhartiya Sakshya Adhiniyam 2023 Not to Have Retrospective Effect
  1. The Indian Evidence Act / Bharatiya Sakshya Adhiniyam is exhaustive with respect to the provisions therein
  1. The Basic Principles Governing the Bhartiya Sakshya Adhiniyam
  1. The general scheme and an Overview of the Bhartiya Sakshya Adhiniyam
  1. Whether Bhartiya Sakshya Adhiniyam Applies to Special Statutory Tribunals
  1. Whether Bhartiya Sakshya Adhiniyam applies to Domestic Tribunals
  1. Whether Bhartiya Sakshya Adhiniyam Applies to Proceedings before Arbitrators
  1. Exclusion of Affidavits – Explained

MODULE No. 2 – INTERPRETATION CLAUSE – “FACT” “FACT IN ISSUE”, “ISSUE OF FACT” and “PROVED”, “DISAPROVED” “NOT PROVED”

1. “Fact” – Meaning

2. Physical Facts and Psychological Facts
I. Physical Facts
II. Psychological Facts
III. Events or State of things
IV. ‘Positive facts’ and ‘Negative facts’

3.“Facts in issue” and “issue of Facts”
I. “Issue of Facts”
II. “Issue of Facts”

4.”Proved” “Disproved” and “Not Proved”

5. “Matters Before the Court”
a. Presumptions: –
b. Facts of which judicial notice can be taken Under Section 51 of the Bhartiya SakshyaAdhiniyam(Section 57 of the Indian Evidence Act)
c. Commissioner’s Report
d. Result of local investigations
e. Observations of demeanour
f. Inspection of Material objects
g. Statements/answers of the accused under section 351 the Bharatiya Nagarik Suraksha Sanhita 2023 (u/s 313 CrPC)
h. Pleadings
i. Charge

6. Difference in the required Standards of Proof between Civil Cases and Criminal Cases

7. Doctrine of Reasonable Doubt in Criminal Cases

8. The Doctrine of Proof beyond Reasonable Doubt Applies in the Inference of Guilt of the Accused Person and Not on all Primary facts –Proposition in M.G Agarwal v. State of Maharashtra

9. Proof of Mensrea

10. Facts showing existence of state of mind, or of body, of bodily feeling

MODULE No. 3 – MEANINGS OF “RELEVANT” AND “RELEVANCY”, DISTINCTION BETWEEN “LOGICAL RELEVANCY AND LEGAL RELEVANCY”, DISTINCTION BETWEEN “RELEVANCY AND ADMISSIBALITY” AND PRIVILLEGED COMMUNICATIONS etc.

1. “Relevant” – Meaning

2. Relevancy under Section 3

3. Difference between Facta Probanda and Facta Probantia

4. Purpose of Relevancy Under Section 3

5. Distinction between Legal Relevancy and Logical Relevancy

6. Distinction between Relevancy and Admissibility

7. Communication during Marriage – Section 128

8. Evidence as to Affairs of State

9. The Court’s Power to Inspect the Documents of which Privilege is claimed to Decide on Such Claim – Section 162 – ‘S.P Gupta Proposition’
I. The Manner of Claiming Privilege
II. Greater Need of Transparency
III. Sealed Cover Jurisprudence – Deprecated

10. Immunity of Police Officers from Disclosing the Whereabouts of Information – Section 131

11. Privilege with Respect to Professional Communications between Lawyer and ClientSections 132 to 134 of the Bhartiya Sakshya Adhiniyam

12. Can the Lawyer of the Opposite Side be Summoned as Witness

13. Is There Any Immunity for The Press/Media from Disclosing the Whereabouts of Information

MODULE No. 4 – RELEVANCY UNDER SECTIONS 4, 5 and 6 OF THE BHARATIYA SAKSHYA ADHINIYAM 2023 (6, 7 and 8 OF THE EVIDENCE ACT) – “Res Gestae”

  1. Res Gestae Under Section 4
  1. Res Gestae a Rule of English Law of Evidence and an Exception to Exclusion of Hearsay Evidence
  1. Spontaneity and contemporaneousness are cardinal to constitute res gestae.
  1. Supreme Court on Res Gestae
  1. Essential Elements of Res Gestae
  1. Facts Which are the Occasion, Cause or Effectof relevant facts – Section 5:
  1. Last seen theory
  1. Admissibility of Audio and Video Tape – Records
  1. Section 6: Motive, preparation and previous or subsequent conduct.
  1. Facts Showing Motive
  1. Facts Showing Preparation
  1. “Conduct” – Previous and Subsequent
  1. ‘Mere Statement’ and ‘Complaint’- Difference

MODULE No. 5 – RELEVANCY OF FACTS WHICH ARE EXPLANATORY OR INTRODUCTORY OF THE OTHER RELEVANT FACTS ETC, UNDER SECTION 7 OF THE BHARATIYA SAKSHYA ADHINIYAM 2023 (SECTION 9 OF THE EVIDENCE ACT) AND LAW RELATING TO IDENTIFICATION PARADE

1. Relevant Facts Covered Under Section 7

2. Introductory and Explanatory facts

3. Facts which support or rebut an inference suggested by a fact in issue or relevant fact

4. Facts which establish the identity of anything or person whose identity is relevant

I. Identity of a thing

II. Identity of Persons

III. Foot Print and Track Evidence

IV. Test Identification Parade (TIP)

V. Test Identification Parade (TIP) is not Substantive Evidence – It is Corroborative Evidence

V1. Purpose and Significance of Test Identification Parade
V11. Non-Conduct of the Test Identification Parade

V111.Test Identification Parade –Summarising the Law

5. Facts which fix the time or place at any fact in issue or relevant fact happened.

6. Facts which show the relation of parties by whom any such fact was transacted

MODULE No. 6 – RELEVANCY OF THINGS SAID OR DONE BY CONSPIRATORS IN REFERENCE TO THEIR COMMON OBJECT, UNDER SECTION 8 OF THE BHARATIYA SAKSHYA ADHINIYAM 2023 (SECTION 10 OF THE EVIDENCE ACT)

  1. Relevancy of things said or done by conspirator in reference to common design.
  1. The Definition of Criminal Conspiracy
  2. Conspirators are agents of each other’s
  3. Proof of Conspiracy
  4. Object and Purpose of Section 8
  5. Basic Elements of Section 10
  6. “In Reference to Common Intention” is Wider in Ambit than “in Furtherance of Common Intention”

MODULE No. 7 – RELEVANCY UNDER SECTIONS 9 TO 15 OF THE BHARATIYA SAKSHYA ADHINIYAM 2023 (SECTIONS 11 TO 16 OF THE EVIDENCE ACT)

1.Facts Inconsistent / Consistent with Other Relevant Facts
1.1 Plea of alibi
1.2 Burden of Proof of Alibi
1.3 Inconsistency Between Medical Evidence and Ocular Evidence
1.4 Absence of Entries in the Account Books
1.5 Omissions in the First Information Statement

2. Facts That Enable Determination of the amount of Damages Under Section 10

3. Facts Relevant When Right or Custom is in Issue (Section 11)

3.1 Scope and Ambit of Section 11(Section 13 of the Evidence Act)
3.2 Transactions which are not inter-partes are made Relevant
3.3. Mere Recital in a Document not a Claim or Assertion of Right
3.4 Examples of Transactions or Instances Covered by Section 11
3.5 Conflict of Views on the Question of Admissibility of Judgments as Assertion of Right under section 11

4. Facts Which Show the Existence of State of Mind – Section 12 of the Bharatiya Sakshya Adhiniyam
4.1 Facts showing state of mind
4.2 Proof of State of Mind
4.3 Proof of state of body and bodily feeling

5. Facts bearing on question whether act was accidental or intentional Section 13 of the Bharatiya Sakshya Adhiniyam

6. Existence of course of business – Section 14 of the Bharatiya Sakshya Adhiniyam.

MODULE No. 8 – ADMISSIONS IN GENERAL UNDER SECTIONS UNDER SECTIONS 15 TO 21 AND 25 OF THE BHARATIYA SAKSHYA ADHINIYAM 2023 (17 TO 23 AND 31 OF THE EVIDENCE ACT)

  1. Admission – Introduction
  1. Admission –Definition in the Bharatiya Sakshya Adhiniyam
  1. Persons Whose Statements are Admissions
  1. Forms of admission
  2. Admissions by persons whose position must be proved as against party to suit – Section 17 of the Bharatiya Sakshya Adhiniyam
  1. Admissions by persons expressly referred to by party to suit – Section 18 of the Bharatiya Sakshya Adhiniyam
  1. What Admissions are Relevant – Section 19 of the Bharatiya Sakshya Adhiniyam
  1. Self-harming and Self-serving Statements/Admissions
  1. Exceptions to the Bar under Section 19 of the Bharatiya Sakshya Adhiniyam
  1. When oral admissions as to contents of documents are relevant
  1. “Admission without prejudice” – Section 21
  1. Distinction between Evidentiary Admission under Section 15 to 19 and Formal / Judicial Admission under Section 53 of the Bhartiya Sakshya Adhiniyam.
  2. Section 25 of the Evidence Act–Admissions Are Not Conclusive Proof,
  3. Evidentiary Value of Admission
  4. Admission in Previous Suit or Proceeding

MODULE No. 9 – CONFESSIONS IN GENERAL

1. Introduction

2. Changes Made In the Bharatiya Sakshya Adhiniyam With Respect to Provisions on Confession

3. Meaning of Confession in legal parlance
‘Nishi Kanth Jha Proposition’ – Inculpatory Part Admitted Excluding the Inherently Improbable Exculpatory Part

4. Confessions is Substantive Evidence

5. Judicial Confession and Extra Judicial Confession

6. Manner of Recording Judicial Confessions

7. Admissibility and Evidentiary value of Judicial Confessions

8. Admissibility and Evidentiary value of Extra Judicial Confessions

9. Can a Person directly approach a Magistrate for recording a Confession or a Non Confessional Statement under Section 316 of the Bharatiya Nagarik Suraksha Sanhita (Section 164 CrPC)

10. Retracted Confession

11. Validity of Confession Caused by inducement Threat or Promise from Person in Authority (Section 22)

12. Meaning of the Phrase ‘Person in Authority’

13. Ingredients of Section 22- Summed Up

14. Confession Made under Promise of Secrecy or Deception Etc are Valid 2nd Proviso (Section 29 of Evidence Act)

15. Necessity of Voluntariness of Confession

16. Extra Judicial Confession to a Police Officer and while in Police Custody are Irrelevant under Section 23 (Sections 25 and 26 of the Evidence Act)
16.1 ‘Custody’ – Meaning
16.2 Police Officer – Meaning
16.3 Customs Officers are not Police
16.4 Central Excise Officers are not Police
16.5 Forest officers are not Police
16.6 Food Inspector is not a Police officer
16.7 Excise Officer/Abkari officer are Police
16.8 Whether a Confession Recorded under Section 67 of the NDPS Act by Officers authorised under Section 42 is Admissible or Hit by S. 23 (1) of the Bharatiya Sakshya Adhiniyam (Section 25 of the Evidence Act) – Tofan Singh case

17 . First Information Report of the Accused which is not a Confession Can Be Used as an Admission against Him under S. 19 of the Bharatiya Sakshya Adhiniyam (S.21 of the Evidence Act)

MODULE No. 10 – RELEVANCY OF INFORMATION AND DISCOVERY UNDER PROVISO TO SECTION 23 OF THE BHARATIYA SAKSHYA ADHINIYAM 2023 (SECTION 27 OF THE EVIDENCE ACT)

  1. Proviso is An Exception to the Provisions in Sections 23
  1. Doctrine of Confirmation by Subsequent Events
  1. The essential elements of the Proviso to Section 23 of the Bharatiya Sakshya Adhiniyam (section 27 of the Evidence Act)
  1. Pulikuri Kottaya v. Emperor – Landmark Case
  1. Meanings of Phrases used in the section – ‘Fact Discovered’- ‘So Much of Such Information’ – ‘As relates Distinctly’ to the ‘fact thereby discovered’
  1. Entire Confessional Statement to the Police Should not be Exhibited in Evidence
  1. The Meaning of the Phrases ‘Accused of any Offence’ and ‘Custody of a Police Officer’ in the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (S.27 Evidence Act)
  1. A Practical Analysis of the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (Section 27 of the Evidence Act)
  1. Pointing out the Place where Stolen Articles or weapons are hidden is also Relevant as Conduct under Section 6 of the Bharatiya Sakshya Adhiniyam) (section 8 of the Evidence Act)
  1. Whether Authorship of Concealment is ‘Sine Qua Non’ for Admissibility of the Statement of the Accused under the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (S.27 of the Evidence Act).
  1. Discovery from an Open Place; Evidentiary Value
  1. Simultaneous Information by two or more Accused Leading to Discovery
  1. Now we will see another aspect :- Whether Absence of any disclosure statement, pointing out memo of the place of recovery and lack of public witness to the alleged recovery whether would be fatal– in the facts of the case it was held not fatal.
  1. Whether accompanying the Police and Pointing out the material object is necessary to attract the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (Section 27of the Evidence Act).
  2. Procedure for Recording and Proving the Information
  1. Whether Recovery Evidence by Itself Would be Substantial Enough to Fix the Guilt of the Accused
  1. Evidence under the proviso to S 23 of the Bharatiya Sakshya Adhiniyam) Needs to be Evaluated Meticulously and Scope for Misuse to be Averted
  1. Facts Contemplated by the Proviso to Section 23 of the Bharatiya Sakshya Adhiniyam (S.27 of the Evidence Act) – Whether are Physical Facts, or Psychological Facts
  1. Constitutionality of S.27 of the Evidence Act
  2. Summing Up –

MODULE No. 11 – CONFESSION OF THE CO-ACCUSED AND ACCOMPLICE’S EVIDENCE UNDER SECTIONS 24 AND 138 OF THE BHARATIYA SAKSHYA ADHINIYAM 2023 (SS 30 AND 133 OF THE EVIDENCE ACT)

  1. Confession of the Co-Accused – Evidentiary Value
  1. Accomplice’s Evidence Under Section 138 of the Bharatiya Sakshya Adhiniyam (Section 133 of the Evidence Act)

Interplay Between Sections 138 and 119 (b) of the Bharatiya Sakshya Adhiniyam

 MODULE No. 12 – STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES INCLUDING DYING DECLARATION UNDER SECTIONS 26 AND 27 OF THE BHARATIYA SAKSHYA ADHINIYAM 2023 (SS 32 AND 33 OF THE EVIDENCE ACT).

  1. Statement of Relevant Fact By Peron Who is Dead or Cannot Be Found etc – Section 26 (Section 32 of the Evidence Act)
  1. Grounds for permitting statements under clauses (a) to (h)
  1. Dying Declaration – Section 32 Clause 1
  1. Exception to the Rule against hearsay Evidence
  1. Sanctity of Dying Declaration and the Reasons for its admissibility
  1. Statement must be as to the cause of death or as to any of the circumstances of the transaction which resulted in his death
  1. Statement is Relevant Only When Cause of Death is in Question
  1. The Evidentiary Value and the Reliability of Dying Declarations
  1. Multiple Dying Declarations – Material Contradictions and Inconsistencies in Multiple Dying Declarations Casts Doubts on the Credibility of the Declarations
  2. Signature/Thumb Impression on the Dying Declaration
  3. Dying Declaration can Form the Sole Basis of Conviction
  4. If the Maker of the Statement to the Magistrate Survives the Statement Could be Used under S.160 of the Bharatiya Sakshya Adhiniyam (Section 157 of the Evidence Act)
  1. Statements made in the course of business – S.26(b) of the Bharatiya Sakshya Adhiniyam (S 32(2) of the Evidence Act)
  1. Statement Against Pecuniary Interest of Maker Section 26(c)of the Bharatiya Sakshya Adhiniyam (Clause 32 (3) of the Evidence Act)
  1. Opinion as to Public Right or Custom, or Matters of General Interest Clause 26 (d)
  1. Statement Relates to Existence of Relationship Section 26 Clauses (e) and (f)
  1. Statement In Document Relating to Transaction Mentioned in Section 11 – Section 26 (g)
  2. Statement is Made by Several Persons Expressing Feelings – Section 26 Clause (h)
  3. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated – Section 27

MODULE No. 13 – STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES UNDER SECTIONS 28 to 33 OF THE BHARATIYA SAKSHYA ADHINIYAM 2023(SS 34 AND 39 OF THE EVIDENCE ACT)

  1. Relevancy of Entries in Books of Account – Section 28

a. Loose Sheets of Paper is not Book for the Purpose of Section 28 the Bharatiya Sakshya Adhiniyam (Section 34 of the Evidence Act)

b. Meanings of ‘Account’, ‘Account Book’ and ‘Regularly Kept in the Course of Business’

Account

‘Account Book’

‘Business’

‘Regularly Kept in the Course of Business’

 

  1. Evidentiary Value of Entries in Books of Account
  2. Central Bureau of Investigation v V C Shukls AIR 1998 SC 1406 – Jain Diary Case Explained
  3. Relevancy of entry in public record made in performance of official duty – Section 29 of the Bharatiya Sakshya Adhiniyam

Basic Elements of Section 29

Public Documents under Section 74

Proof of Public Documents by Certified Copies under Section 77

Probative Value of Entries in Public Record

Revenue Record- Mutation Does Not Confer Title

Relevancy Of Entries In School Register – Date of Birth

Proof of Age of Victims of Offences

Examples of Public Records

Summing Up of Section 29

  1. Relevancy of statements in maps, charts and plans – Section 30

Site Plan/Mahazar by prepared by Police officer

  1. Relevancy of statement as to fact of public nature contained in certain Acts or notifications – Section 31
  2. Facts Stated In Gazette Admissible under Sections 29, 31 Read with Section 80 of the Bharatiya Sakshya Adhiniyam (Ss. 35,S.37 Read With S. 81 Of The Evidence Act, 1872).
  3. Relevancy of statements as to any law contained in law-books – Section 32
  4. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers – Section 33

MODULE No. 14 –   RELEVANCY OF JUDGMENTS

  1. Introduction
  2. Previous judgments relevant to bar a second suit or trial – Section 34

2.1 Doctrine of Res judicata

2.2 Double Jeopardy – Autre Fois Acquit and Autre Fois Convict

  1. Relevancy of certain judgments in probate, etc., jurisdiction – Section 35

3.1. Judgment in rem

3.2. Scope of the Section

3.3. Probate Jurisdiction

3.4. Matrimonial Jurisdiction

3.5. Admiralty Jurisdiction

3.6 Insolvency Jurisdiction

  1. Section 36: Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 35 – Judgments Relating to Matters of Public Nature
  2. Section 37: Judgments, etc., other than those mentioned in sections 34 to 36, when relevant.
  1. Conflict of Views on the Question of Admissibility of Judgments as Assertion of Right under section 11
  2. Whether Civil Court Judgment is Binding upon Criminal Court or vice versa – And Criteria for Stay of Simultaneous Proceedings
  1. Admissions of the Parties in the Previous Proceeding can be Proved in Subsequent Proceeding
  1. Quashing of Criminal Case When Civil Case is Settled – Criteria
  2. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.

10.1. Fraud has to be Pleaded and Proved

10.2 Separate Suit to Set-Aside a Judgment Obtained by Fraud is not Necessary

MODULE No. 15 – RELEVANCY OF OPINION – OPINION EVIDENCE

  1. Introduction
  1. Expert Opinion – Section 39
  1. Meaning of Science and Arts
  1. Who is an Expert; Scrutiny of Competency by the Court
  1. Nature and Evidentiary Value of Expert’s Evidence
  1. Opinion of Medical Expert – Case Law
  1. Conflict in Medical Evidence and Ocular Evidence
  2. Opinion of Forensic Expert on Gunshot injury Rendering Ocular Evidence Unrealiable
  1. Finger Print Expert’s Opinion
  2. Opinion of Handwriting Expert – Evaluation
  1. Examination of Expert Whether Necessary to Accept the Report in Evidence.

Civil Cases

Criminal Cases

  1. Facts Bearing Upon Opinion of Experts
  1. Opinion of Persons acquainted with the Handwriting are Relevant U/s. 41
  2. Opinion as to the Existence of Custom or Right
  1. Opinion as to Usages, Tenets etc.
  1. Opinion by Conduct on Relationships
  1. Strict Proof Required for Proving Offence of Bigamy under section 494, and Offences Under 495, 497 or 498 of the Indian Penal Code
  2. Grounds of Opinion Relevant

MODULE No. 16 –   CHARACTER EVIDENCE

  1. Introduction
  1. Character of Parties in Civil Cases
  1. Character of Parties in Criminal Cases
  1. Evidence of character or previous sexual experience not relevant in certain cases – Section 48
  1. “Character” includes both Reputation and Disposition
  1. Credibility and Character of Witnesses

MODULE No. 17 –   FACTS WHICH NEED NOT BE PROVED

  1. Introduction
  2. Facts Judicially Noticeable and Admitted Facts
  3. Facts Judicially Noticeable – Provisions
  1. Judicial Notice of Notifiication under Telegraph Act as Law under Section 52 (1) of the Bharatiya Sakshya Adhiniyam
  1. Judicial Notice of Parliamentary Standing Committee Report under Section 52
  1. Judicial Notice of Facts Beyond What are Enumerated in Section 52
  2. A Few Instances Where the Court Took Judicial Notice Beyond matters enumerated in Section 52
  3. Judicial Notice of Custom as Law
  1. Formal or Judicial Admissions – Facts admitted need not be proved – Section 53
  1. Distinction between Evidentiary Admission under Sections 15 to 19 and Formal / Judicial Admission
  2. Supreme Court on the Evidentiary Value of Admissions

MODULE No. 18 – ORAL EVIDENCE

  1. Introduction
  2. Proof of facts by oral evidence – Section 54
  3. Oral evidence must be direct – Section 55
  4. Evidentiary Value of Contents of the Scene Mahazar /Site Plan Prepared by the Police Officer
  5. Exclusion of Hearsay evidence and its Exceptions
  6. Material Evidence or Real Evidence

MODULE No. 19 – DOCUMENTARY EVIDENCE

  1. Introduction
  1. Document, Contents of a Document and Documentary Evidence

2.1 Document

2.2 Specific Inclusion of “Electronic Record” in the Definition Document

2.3 Contents of a Document

2.4 Documentary Evidence

  1. Proof of Disputed Facts in A Document
  1. Mere production of document is not proof of contents of document
  1. Proof of Contents of A Document – Primary And Secondary Evidence

5.1 Primary Evidence

5.2. Secondary Evidence

5.3 When Secondary Evidence is admissible

5,4 Non-Production Of The Original Should Be Accounted For

5.5 Formal Application For Adducing Secondary Evidence Is Not Mandatory

5.6 Secondary Evidence Not Admissible of Insufficiently or Unstamped Original

5.7 Secondary Evidence of Public Documment – Certified Copy is Admissible

5.8 Notice to Produce under Section 64

  1. Proof of Contents & Proof of Genuineness
  1. Methods of Proving the Handwriting
  2. Whether Mere Admission of Signature Lead to a Presumption that the Execution of the Document is Admitted/Proved.
  3. Taking the Document On Record As Evidence, Otherwise Than Through A Witness, Is Unknown To Law Except With Consent
  1. Mere Marking May Not Amount To Proof
  1. Registration Is Not Proof of Execution
  1. Presumption of Genuineness of Registered Documents
  1. The Registration of Documents Does Not Per se or Ipso Facto Absolve Proof of Execution of Will
  1. Comparison of signature, writing etc. by the Court and Taking of Specimen Writing – Section 72
  1. Analysis of Section 72
  1. Consequence of Non-Adherence of Direction under Section 72 and Failure to Provide Specimen Writing
  1. The Court Has Power to Compare Handwriting but Such Power Should Be Exercised with Caution
  2. Constitutionality of Section 73 of the Evidence Act (Section 72 of the Bharatiya Sakshya Adhiniyam)
  1. Expert Opinion on Handwriting
  1. Proof as to digital signature
  1. Private And Public Document

21.1 Section 74 (b) Public Records Kept in Any State of Private Documents

21.2 Registered Sale Deed is not Public Record Kept of Private Document

21.3 Parliamentary Standing Committee Report Is Public Document – Court Can Take Judicial Notice

21.4 A Document Issued by The Election Commission Is Public Document

21.5 Pleadings Filed in Court Are Not Public Documents

21.6 The Record of The Court And The Record Of The Acts Of The Court – Statement U/S 183 Bharatiya Nagarik Suraksha Sanhita, 2023 (U/S.164 of Cr.P.C) Is Public Document

21.7 Whether An Accused is Entitled to Copy of the Statement Recorded Under Section U/S 183 Bharatiya Nagarik Suraksha Sanhita, 2023 (Section 164 CrPC) Before the Final Report is Filed

21.8 Third Party/Stranger’s Right to Obtain Copy of the Statement Recorded Under Section 164 CrPC (U/S 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023)

21.9 The Court Bailiff’s Report of Delivery of Property or Service of Summons – Whether is Public Document and Its Evidentiary Value

21.10 Certified copies of public documents

21.11 Proof of documents by production of certified copies – Section 76

21.12 Certified Copies of Public Document Prove Contents of Document with Out Calling Its Maker as A Witness

21.13 Proof of Official Documents

21.14 Mode of Proof of Statutory Notifications

21.15 Judicial Notice of Notifiication under Telegraph Act as Law under Section 52(1)

21.16 Probative Value of Entries in Public Record

  1. Admissibility of Audio and Video Tape – Records

MODULE No.20 – ADMISSIBILITY OF ELECTRONIC RECORDS

  1. Introduction
  1. Relevant Statutory Provisions

a. Definition of ‘Document’ and ‘Evidence’ in the Bharatiya Sakshya Adhiniyam – Electronic Record is Specifically Included in the Definition of Document

b. Widening the Ambit of Primary Evidence Relating to Electronic Record – Addition of Explanations 4 to 7 to Section 57

c. Relevancy of Expert Opinion on Electronic Record – Section 39(2)

d. Presumption As to Electronic Message Forwarded – Section 90

e. Admissibility Mode of Proof of the Contents of Electronic Records – Sections 61, 62 and 63

  1. From ‘Navjot Sandhu’ To ‘Arjun Panditrao’ – Differential Interpretations By The Supreme Court On The Mandatory Nature Of Compliance Of The Requirements Of Section 65B (4) Of The Evidence Act

3.1. Navjot Sandhu Case (Overruled in Anvar P.V)

3.2. Anvar P.V Case (Followed and upheld in Arjun Panditrao)

3.3 Tomaso Bruno Case (held as per incuriam in Arjun Panditrao case)

3.4 Sonu’s case (objection as to the mode proof should be raised at the stage of marking)

3.5 Shafhi Mohammad case – (Overruled in Arjun Panditrao)

3.6 Arjun Panditrao Case – (Upheld Anvar P.V And Conclusively Settled the Law Relating to S.65B)

  1. ‘Arjun Panditrao’ – Brief Facts of the Case
  1. Discordance Between Anvar P.V. And Shafhi Mohammad – Reference to The Larger Bench
  1. Verdict of The Three Judges Bench in Arjun Panditrao
  1. The Certificate Required Under S.65B is Mandatory When Computer Output is Produced
  2. Certificate Under S.65B (4) is not Required if the Original Itself is Produced.
  3. ‘Tomaso Bruno’ and ‘Shafhi Mohammad’ are Overruled and ‘Anvar P.V’ is upheld
  4. Mechanism For the Production of Certificate – Coercive Steps Under the Evidence Act, CPC and CrPC
  5. Application Of the Impossibility Doctrine – When Will a Party Be Relieved of The Mandatory Obligation to Procure The Certificate Under Section 65B (4)
  6. Stage of Production of Certificate
  1. General Directions to the Cellular Companies and Internet Service Providers
  2. Summing Up of the Conclusion in Arjun Panditrao by The Court
  3. Concurring Judgment by Justice V. Ramasubramanian – Emphasising The Need For A Relook At The Provision By The Legislature
  4. Evidence in Analogue Form
  5. Difference Between Materials in Analogue Form and The Same Thing in Digital Form
  6. The Concurring Judgment Emphasised the Need for A Relook at Section 65B
  1. Arjun Panditrao Khotkar is Followed and Reiterated in Ravinder Singh a Later Supreme Court Judgment
  2. Admissibility of Conventional / Analogue Audio and Video Tape – Records
  1. Changes Brought in Section 63 of the Bharatiya Sakshya Adhiniyam

a. Computer Out Put Made Admissible …. Ambit of Computer Output and Electronic Record are Expressly Made Broader – Clause (1) of Section 63

b. Condition for Admission of Computer Output – Clause (2) of Section 63 of the Bharatiya Sakshya Adhiniyam

c. One or More Computers or Communication Device for Creating/ Processing Information Considered as a Single Computer/ Device – Sub Clause (3) of Section 63

d. Submission of Certificate Along with the Computer Output by Person in Charge of the Computer and an Expert – Sub Clause (4) of Section 63

e. Supply of Information to the Computer and Computer Output Produced – Explained – Sub Clause (4) of Section 63

f. Formats of Certificates in the Schedule

      22. Whether An Accused is Entitled to Get Copy of an Electronic Record Produced in the Court

MODULE No. 21 – MODE OF PROOF OF EXECUTION OF A DOCUMENT REQUIRED TO BE ATTESTED BY LAW

  1. Introduction
  2. Documents Which Require Attestation
  1. Attestation – Meaning
  1. Whether A Scribe Can Be an Attesting Witness – Requirement of ‘animo attestandi’
  2. Whether a Registrar of Deeds can also be an attesting witness
  3. Basic Elements of Section 67
  4. The Registration of Document Does Not Per se or Ipso Facto Absolve Proof of Execution of Will or Other Document Required to be Attested
  5. When The Document Is Registered and Execution Is Not Denied by the Party then Examination of Attesting Witness is not required – Application of Proviso to S.67
  1. Mode of Proof When the Attesting Witnesses Cannot be Found -Section 68
  2. Admission of execution by party to attested document
  1. Application of Section 70 – When the Attesting Witness Denies or Does Not Recollect the Execution – Execution should be proved by Other Evidence
  2. Proof Of Will – Main Features – Case Law

a. Apart From Compliance of Section 68 Proof of Will Doesn’t Differ From proof of Other Documents

b. A Will Speaks from The Death of The Testator And that Does Introduce an Element of Solemnity in Its Proof

c. Duty to rebut Suspicious Circumstances and Significance of The Evidence of The Sub Registrar Who Registered the Will

d. Allegation of Undue Influence, Fraud and Coercion – Burden of Proof on one who alleges

e. When Will is Proved the Contents Are Part of Evidence

f. Proof of Will – Summary/Summing Up

  1. Whether Section 67 Procedure Is Mandatory When Execution of The Will Is Admitted or Not Specifically Disputed/Denied- Whether Section 58 of the Evidence Act Overrides Section 67
  2. Whether The Presumption Under Section 92 of the Bharatiya Sakshya Adhiniyam Is Available to A Will Which Is More Than 30 Years Old
  3. Proof of document not required by law to be attested

MODULE No. 22 – PRESUMPTIONS

Module 22 – Part 1
  1. ‘May presume’ – Presumption of Facts – Discretionary Presumptions
  1. 119, illustration (a) – Case Law
  1. Corpus and the Animus of Possession Must Be Established – Illustration (a) of S 119
  1. Importance of Time Factor in S.119 illustration (a)
  2. Recovery of Stolen Property – Whether Presumption Could be drawn of Theft / Robbery and Murder – Cautious Approach is Required
  3. 119, illustration (b) – Case Law
  1. Accomplice’s Evidence Section 138 and 119 (Section 133 and S.114, illustration (b) of Evidence Act)
  1. 119, illustration (c) – Case Law
  1. 119, illustration (d)
  1. 119, illustration (e) & (f)
  1. 119, illustration (e) Presumption Applies to All Official Acts
  1. Illustration (e) to S.119, Equally Applies to Police Officers
  1. Presumption of Genuineness of Registered Documents
  1. The Registration of Documents Does Not Per se or Ipso Facto Absolve Proof of Execution of Will
  2. Presumption Of Truth of Revenue Record
  1. Probative Value of Entries in Public Record
  1. 119 illustration (f)
  1. Presumption Relating to Due Service/Delivery in the Case of Letters Issued by Certificate of Posting and Registered Post
  1. 119, illustration (g) & (h)
  1. Parties Cannot Withhold Best Evidence
  1. Withholding of Material Witness – When Adverse Inference Can Be Drawn
  2. When A Party To The Suit Does Not Appear As A Witness – Adverse Inference
  1. 119, illustration (i)
  1. Presumption Under S.119 Are Not Confined to Instances Provided in Illustrations (a) to (i)
  1. Presumption of Marriage in Long Cohabitation
  1. Drawing Inference of Rate / Amount of Use and Occupation Charges by the Court – Permissible Under S 119 of the Bharatiya Sakshya Adhiniyam
  1. Presumption as to Certified Copies of Foreign Judicial Records – S. 88
  1. Presumption as to Books, Maps and Charts – S.89
  1. Presumption as to Telegraphic Messages
  1. Presumption as to Electronic Message – S 90
  1. Presumption As to Ancient Documents S.92
  1. Provision ( S 92) Is Founded on Necessity and Expediency
  2. Presumption is With Respect to Genuineness of Signature, Execution and Attestation and Not as To Truth of Recitals/Contents
  1. The Date of Computation of The Elapse of Thirty Years in S.92
  1. Whether The Presumption Under Section 92 of the Bharatiya Sakshya Adhiniyam Is Available to A Will Which Is More Than 30 Years Old
  1. Bharpur Singh v. Shamsher Singh – Held Per incurrium Of Larger Bench Decisions in K. V. Subbaraju v. C. Subbaraju, (3 Judges Bench) (AIR 1968 SC 947)
  1. Presumption As to Abetment of Suicide by A Married Woman – S 117
  1. Ingredients Of S. 117 of the Bharatiya Sakshya Adhiniyam (S.113A Evidence Act)
  2. Case Law Where the Courts Refused to Draw Presumption Under Section 113A (Section 117 of the Bharatiya Sakshya Adhiniyam) – Foundation for Drawing the Presumption Should Be Established
  3. A Cause-and-Effect Relationship Between the Cruelty and the Suicide
  4. Case Law Where the Courts Drew Presumption Under Section 113A Evidence Act and Convicted the Accused
Module 22- Part 2
  1. Rebuttable Presumptions of Law / ‘Shall Presume’ Proposition – Mandatory Presumptions
  1. Presumption as to Genuineness of Certified Copies – S 78
  1. To Attract the Presumption of Genuineness the Certified Copy Must Be Issued Substantially In The Form And In The Manner Provided By Law
  1. Certified Copies of Public Document Prove Contents of Document with Out Calling Its Maker as A Witness
  1. Presumption as to Documents Produced as Record of Evidence
  1. Certified Copy of Deposition of a Party in Another Case Can Be Marked with Out Examining Such Party
  1. Confession Duly Recorded by A Magistrate Can Be Received in Evidence with Out Examining the Magistrate
  2. Memorandum Of Identification Parade Proceedings by A Magistrate Has to Be Proved – Section 79 of the Bharatiya Sakshya Adhiniyam Is Not Applicable
  3. Presumption as to Gazettes, Newspapers, Private Acts of Parliament etc
  1. Facts Stated in Gazette Admissible under S. 29 Read with S. 80 Of the Bharatiya Sakshya Adhiniyam
  1. News Paper Reports Is Hearsay – Fact Has to Be Independently Proved
  2. Presumption as to Gazettes in Electronic Forms
  1. Presumption as to Document Admissible in England Without Proof of Seal or Signature – Section 82 of the Evidence Act (omitted)
  1. Presumption as to Maps or Plans Made by Authority of Government
  1. Presumption as to Collections of Laws and Reports of Decisions
  1. Presumption as to Powers-of-Attorney
  1. Meaning / Definition of Power of Attorney
  1. Authentication – Meaning
  1. Presumption – Person Who Executed the POA Complying Section Section 84 of the Bharatiya Sakshya Adhiniyam Had The Authority To Do So For The Company
  2. Presumption under Section 84 of the Bharatiya Sakshya Adhiniyam as to Powers-of-Attorney is Mandatory but Rebuttable
  1. Attestation Not Mandatory for A Power of Attorney
  1. Presumption Of Regularity of Notarial Acts
  1. Notary Public Includes Notary Public of Foreign Countries
  1. Notification Under S.14 of the Notaries Act,1952 Whether Mandatory for Recognising Foreign Notarial Acts and Application of Presumption Under S.85 of the Evidence Act – Conflicting Views
  2. “Jaldhi Overseas” to be Correct and Pragmatic and “Rei Agro Limited” Appears to be Hyper Technical and Per incurrium
  1. Presumption as to Electronic Agreements
  1. Presumption as to Electronic Records and Digital Signatures
  1. Presumption as to Electronic Signature Certificate
  1. Presumption as to Due Execution, etc., of Documents Not Produced After Notice to Produce
  1. Application Of Presumption Under S 89 When Notice Under S 64 is Dispensed
  1. Presumption as to dowry death – Section 118 of the Bharatiya Sakshya Adhiniyam (Section 113B of the Evidence Act)
  1. Dowry Death – Definition
  1. Legislative Intent of Ss 80 and 85 of the Bharatiya Nyaya Sanhita, 2023 (S.304 – B, 498 – A, IPC), Ss 117 and 118 of the Bharatiya Sakshya Adhiniyam (S. 113 – A and 113 – B of the Indian Evidence Act)
  1. Scope of Section 118 of the Bharatiya Sakshya Adhiniyam (S 113 B Evidence Act)
  1. Cruelty and Demand for Dowry Must Be Proved For Drawing Presumption Under Section 118 of the Bharatiya Sakshya Adhiniyam S.113 B of the Evidence Act
  1. Standard of Proof of Cruelty required for Drawing Presumption Under Section 118 of the Bharatiya Sakshya Adhiniyam (S.113 B of the Evidence Act)
  1. “Soon before” is a Relative Term and no Strait – Jacket Formula Can Be Laid Down as to the Time Frame
  1. Standard of Proof for Rebutting the Presumption under S 113 B (Section 118 of the Bharatiya Sakshya Adhiniyam) is Preponderance of Probabilities’
  2. Summary of Law of Section 80 of the Bharatiya Nyaya Sanhita and Section 118 of the Bharatiya Sakshya Adhiniyam (S.304 – B IPC and S.113 – B of the Evidence Act)
  3. Presumption as to absence of consent in certain prosecution for rape – Section 120
  1. Corroboration of Prosecutrix / Victim’s Evidence Is Not Generally Insisted in Rape Cases
  1. Presumption Under Section 120 of the Bharatiya Sakshya Adhiniyam (S.114A Evidence Act) is Not Available for Offence Under S 64(1) of the Bharatiya Nyaya Sanhita, 2023 (376(1) IPC) and Available Only in Offence under S. 64(2) (376(2) IPC)
  1. 114A (Section 120 of the Bharatiya Sakshya Adhiniyam) Adds Weight and Credence to the Statement of the Victim Woman
  1. There Should Be Proof of Sexual Intercourse For Drawing Presumption under S 114A (Section 120 of the Bharatiya Sakshya Adhiniyam)
  1. Instance of Rebuttal of Presumption under S 114 A of the Evidence Act – (Section 120 of the Bharatiya Sakshya Adhiniyam) – Case Law
  2. Presumptions of Law Under Negotiable Instruments Act
  1. Rebuttal of Presumption of Law under S.118 (a) of N I Act
  2. Rebuttal of Presumption under Section 139

Module 22 – Part 3

  1. Irrebuttable Presumptions of Law/ ‘Conclusive Proof’ Proposition
  1. Presumption of paternity
  1. Acceptability of DNA Test to Disprove Paternity; Recent Trend
  2. When DNA Test can be allowed

MODULE No. 23 – EXCLUSION OF ORAL EVIDENCE BY DOCUMENTARY EVIDENCE

  1. Introduction
  1. Section 94 of the Bharatiya Sakshya Adhiniyam Embodies the Best Evidence Rule
  1. The Section Applies Only to ‘Terms’ of the Contract and Not to every ‘Facts Stated in the Deed’

a. The Acknowledgment of Receipt of the Sale Consideration in a Deed of Sale is not a Term of the Deed of Sale

b. Recital as to Possession in a Contract Is Not a “Term” of Contract

  1. Exclusion of Evidence of Oral Agreement

4.1 Facts Vitiating the Document may be proved by Oral Evidence

4.2 Separate Oral Agreement Not Inconsistent with The Terms In The Document May Be Proved

4.3 Oral Agreement Constituting a Condition Precedent

4.4 Subsequent Oral Agreement When There is no Law Requiring a Written Document

4.5 Proof of usage or custom

4.6 Proof To Show in What Manner the Language is Used

  1. No Bar in Showing that the Document is Sham or Nominal or Never Intended to be Operative
  2. Patent Ambiguity and Latent Ambiguity – Permissibility of Extrinsic Evidence

a. Extrinsic Evidence Is Admissible Only in Cases of Latent Ambiguity and Not in Cases Patent Ambiguity

b. Discrepancy in Terms of Grant in the Instrument and the Attached Plan

c. Discrepancy Between Parts of the Document – Admissibility of Extrinsic Evidence –

d. When There Is Discrepancy Generally Boundaries Prevail Over Discerption

e. Doctrine of Falsa Demonstration or Blue Pencil Theory

       7. Who may give evidence of agreement varying terms of document – Whether S. 95 applies to Strangers

  1. Saving of Provisions of the Indian Succession Act as To Construction of Wills

MODULE No. 24 – BURDEN OF PROOF

  1. Introduction
  1. The Meaning/Different Senses in which The Phrase “Burden of Proof” is Employed
  2. One Who Asserts Must Prove and Onous of Proof Keeps Shifting as Evidence is Adduced
  3. When Both the Sides Adduce Evidence the Burden of Proof Becomes Academic/Insignificant
  4. Parties Cannot Withhold Best Evidence
  5. Whether Mere Admission of Signature Lead to a Presumption that the Execution of the Document is Admitted/Proved
  6. Burden of Proof in transaction with a Pardanashin Lady or Illiterate Ignorant Person
  7. The Doctrine of ‘non est factum’
  1. Burden to Prove Title in Suit for Declaration of Title or for Recovery of Possession Based on Title
  1. Burden of Proving Lack of Consideration for a Promissory Note
  1. Proof of Mala fides
  2. Proof of Benami Transaction
  3. Family Custom — Burden of Proof
  1. Burden of Proof as to the Authenticity of Electronic Evidence is upon the Person Producing the Same
  2. Burden of proving fact to be proved to make evidence admissible – Section 107 of the Bharatiya Sakshya Adhiniyam (Section 104 of the Evidence Act)
  3. For Offering Secondary Evidence Non-Production of The Original Should Be Accounted For
  1. Burden of proving that case of accused comes within exceptions is on the Accused – Section 108 of the Bharatiya Sakshya Adhiniyam (Section 105 of the Evidence Act)
  1. Burden and Standard of Proof to Discharge the Burden in Claim of Insanity – Case Law
  1. Burden and Standard of Proof to Discharge the Burden in Claim of Private Defence – Case Law
  1. When Provocation was Sought by the Appellant Himself – Exception under (S.300 IPC) will not Apply
  1. Burden of proving fact especially within knowledge
  1. Case Based on Circumstantial Evidence – Duty of the Accused to Explain the Circumstances Appearing Against Him
  2. Last Seen Together – Duty to Explain
  1. Burden To Prove the Claim of Alibi or Any Such Plea is on the Accused – Standard of Proof is Lower Than That of The Prosecution
  2. Section 109 Does Not Absolve the Prosecution from Its Burden to Prove the Case
  3. Presumption of Continuance of Life and Presumption of Death
  1. Analysis of Sections 107 and 108
  1. There is No Presumption as To Time of Death
  2. An Occasion for Raising the Presumption Arises Only When the Question is Raised in a Court or Other Adjudicatory Authority
  1. Registrar of Births and Deaths Has No Power to Declare Civil Death
  1. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent – 112
  1. Burden of proof as to ownership -S 113
  1. Basic Elements of Section 113
  1. Possession is Good Title Against All the World Except the Rightful Owner
  1. When the Facts Disclose No Title with Either Party Possession Decides – ‘Title Follows Possession’ Applies
  2. ‘Jus tertii’ is Not a Defence
  3. When the Property is a Vacant Site the Principle ‘Possession Follows Title’ Applies
  4. Object of Section 113 is Public Policy and To Prevent Persons from Taking Law on to Their Hands
  5. Law Does Not Favour Taking Forceful Possession Even by the True Owner
  1. Meaning of Settled Possession and Protection of Settled Possession
  1. Proof of good faith in transactions where one party is in relation of active confidence – S 114
  2. Burden and Standard of Proof in Criminal Cases and the Modern Doctrine of Reverse Burden
  3. Reverse Burden and Statutory Presumptions in Special Criminal Statutes
  1. Some of the Provisions Which Provide for Reverse Burden of Proof
  1. Case Law on Reverse Burden
  2. Reverse Burden in Prevention of Corruption Act, 1947– Case Law
  3. Reverse Burden in NDPS ACT– Case Law
  4. Reverse Burden in Protection of Children from Sexual Offences Act (POCSO Act) – Case Law
  1. PMLA Section 24 – Upheld by the Supreme Court-– Case Law

 MODULE No. 25 – ESTOPPEL

  1. ESTOPPEL – Introduction
  1. Estoppel – Provisions in the Bharatiya Sakshya Adhiniyam /Evidence Act
  1. Elements of Estoppel
  1. Estoppel on the Ground of Negligence – Requirement
  1. Estoppel Against a Tenant, Licensee, Acceptor of a Bill of Exchange and a Bailee

The Tenant Is Not Estopped to Challenge the Derivative Title Of An Assignee Of The Original Landlord

  1. Distinction Between Estoppel and Admission
  1. Estoppel and Acquiescence
  2. Estoppel and Doctrine of Election
  3. Estoppel and Waiver
  4. Issue Estoppel

11. Promissory Estoppel

a. Promissory Estoppel in Charitable Subscription

b. Promissory Estoppel and Government

c. Different Standards for Individuals and Public Bodies Not Generally Permitted

d. No Estoppel Against the Government in The Exercise of Its Legislative Powers

e. Doctrine Not Generally Applied Against the State in Its Governmental, Public or Sovereign Capacity – Constitution Bench “M Ramanathan Pillai”

f. Motilal Padampat Sugar Mills Co. Ltd – A Progressive – Landmark Judgment – Promissory Estoppel Applies to Government

g. Discordance Between ‘Motilal Padampat Sugar Mills Co. Ltd.’ (Authored by Bhagwati, J and ‘M/s Jit Ram Shiv Kumar’ (Authored by Kailasam, J) – Two Schools of Thought

h. Criticism of ‘Jit Ram’

i. Summing Up of The Guiding Principles of Promissory Estoppel

j. Promissory Estoppel and Principles of legitimate expectation

MODULE No. 26 – COMPETENCY AND COMPELLABILITY OF WITNESSES

  1. Introduction
  2. Who May Testify – Section 118
  3. Failure to Administer Oath to A Witness – Not Fatal
  4. Testimony of Child Witness

4.1 Recording of Satisfaction of Competency of Child Witness

4.2 Child Witness’s Evidence Should Be Evaluated Carefully

4.3 Summary of Criteria for Appreciation of the Evidence of a Child Witness

  1. Other Causes of Incompetency to be a Witness
  1. Lunatic Witness Perse Not incompetent
  1. A Witness Unable to Speak May Give Evidence in Any Intelligible Manner
  2. Parties to Civil Suit, and Their Wives or Husbands – Husband or wife of Person Under Criminal Trial Shall Be Competent Witness
  1. Judges and Magistrates Immunity From questions as to his own conduct in Court
  1. Distinction between Relevancy and Admissibility & Privileged Communication
  1. Communication during Marriage – Section 128
  1. Evidence as to Affairs of State
  1. The Court’s Power to Inspect the Documents of which Privilege is claimed to Decide on Such Claim – Section 162 – ‘S.P Gupta Proposition’
  1. The Manner of Claiming Privilege
  1. Greater Need of Transparency
  1. Sealed Cover Jurisprudence – Deprecated
  1. Immunity of Police Officers from Disclosing the Whereabouts of Information – Section 131
  1. Privilege with Respect to Professional Communications between Lawyer and Client Sections 132 to 134 of the Bhartiya Sakshya Adhiniyam
  1. When can the Lawyer of the Opposite Side be Summoned as Witness
  1. There is No Immunity for The Press/Media from Disclosing the Whereabouts of Information
  1. Production of Title-Deeds of Witness not a Party – Cannot Be Compelled
  2. Production of documents or electronic records which another person having possession, could refuse to produce
  1. Witness not excused from answering on ground that answer will criminate
  1. Accomplice’s Evidence Under Section 138 of the Bharatiya Sakshya Adhiniyam (Section 133 of the Evidence Act)
  1. No Number of witnesses is Mandated for Proving a Fact
  1. Sole Witness – Evaluation of Evidence
  1. Classification of Witness as (1) Wholly Reliable. (2) Wholly Unreliable and (3) Neither Wholly Reliable nor Wholly Unreliable
  1. The Criteria for Evaluation of the Evidence of Sole Witness – Summarised

MODULE No. 27 – EXAMINATION OF WITNESSES

  1. Introduction
  1. Order of Production and Examination of Witnesses

2.1 Prosecutor’s Discretion to Determine the Order of Examination of Prosecution Witnesses

2.2 Power of Court to Keep Out of the Court Room a Proposed Witness When Other Witnesses are Examined

  1. Judge to Decide as to Admissibility of evidence

3.1. Guidelines Laid Down by the Supreme Court for Dealing with Objection as to Relevancy/Admissibility

 

  1. Provisions Relating to Examination of Witness

a. Order of examinations

b. Cross-examination of person called to produce a document

c. Witnesses to character

d. Leading questions

e. Evidence as to matters in writing

f. Cross-examination as to previous statements in writing

g. Questions lawful in cross-examination

h. When witness to be compelled to answer

i. Court to decide when question shall be asked and when witness compelled to answer

j. Question not to be asked without reasonable grounds

k. Procedure of Court in case of question being asked without reasonable grounds

l. Indecent and scandalous questions

m. Questions intended to insult or annoy

n. Exclusion of evidence to contradict answers to questions testing veracity

o. Question by party to his own witness

p. Provisions Relating to Impeaching Credit of Witness

  1. The scheme of Indian Evidence Act in Respect of Examination of Witnesses
  2. Judge’s Duty to Protect the Witness from Impermissible Questions, duty to Admit Relevant Evidence and Reject Irrelevant Evidence etc
  3. Scope of Cross Examination
  4. Cross Examination Directed merely to Harass /Humiliate/ Oppress the Witness – Not Permissible
  5. Relevancy of Questions Relating to the Credit of a Witness
  6. No Witness can be Cited to Contradict Answers Testing Veracity
  7. Indecent or Scandalous Questions Cannot be Asked
  8. Denying Opportunity to Cross Examine Amounts to Failure of Justice
  9. Consequence of Failure to Cross Examine in spite of Opportunity
  1. Balancing “the Right of Cross Examination” of the Adverse Party and the Court’s Power to Keep the Cross Examination with in the Boundaries of Law
  1. The Evidence Act/ Bharatiya Sakshya Adhiniyam Does Not Employ the Terms “hostile” witness, “adverse” witness, “unfavourable” – Permission to Put Questions under Section 157 of the Bharatiya Sakshya Adhiniyam (S 154 of the Evidence Act) Doesn’t Mean a Question Mark on the Veracity of the Witness
  2. Permission to Put Questions Under Section 157 of the Bharatiya Sakshya Adhiniyam (S.154 of the Evidence Act) Can Be Granted at the Stage of Cross Examination Also
  1. Section 154 of the Evidence Applies in Criminal as well as Civil Cases
  1. Manner of Impeaching the Credit of A Witness
  2. Provisions Relating to Contradicting the Witness with His Previous Statement
  3. Who Can Use Statement Under 161 CrPC to Contradict the Witness – Court Cannot Suo Motu Use the Previous Statement
  4. The Manner of Confronting the Witness with the Previous Statement and How it is Proved and Marked in Evidence
  5. Substantial Compliance of Section 145 of the Evidence Act (Section 148 of the Bharatiya Sakshya Adhiniyam)
  1. If the Witness Admits the Previous Statement or Omission Then it Need Not be Proved
  2. The Entire 162 CrPC (Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023) Statement Should not be Admitted in Evidence or Marked
  3. Statements Made in Panchnama/ Scene Mahazar /Site Plan
  1. Omission When Amounts to Contradiction
  1. Tahsildar Singh – Majority View and Minority View and The Impact of the Explanation Regarding ‘Omission’ Added to Section 162 in the 1973 Code of Criminal Procedure
  2. There is No Distinction Between a Party Witness and Other Witnesses in the matter of Confrontation with Documents During Cross Examination
  1. The Document / Prior Statements Intended for Confrontation Need Not Be Produced Before the Court in Advance – The proposition is Reiterated
  2. Provisions Relating to Corroborating the Witness with His Previous Statement – S 160
  1. “At or about the time when the fact took place” in Section 160 – Meaning
  1. The Former Statement May Be in Writing or May Be Oral
  2. Former Statement is Not Substantive Evidence
  3. Use of First Information Statement for Corroboration Under Section 160 of the Bharatiya Sakshya Adhiniyam (U/S 157 of the Evidence Act)
  4. Statement Made Under S.164 of CrPC (Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023) Is Not Substantive Evidence but Could Be Used for Corroboration Under Section 160 of the Bharatiya Sakshya Adhiniyam (U/S 157 of the Evidence Act)
  5. Person Surviving After Giving Purported Statement Section 26 of the Bharatiya Sakshya Adhiniyam (U/S 32 Evidence Act), Statement May Be Used For Corroboration Section 160 of the Bharatiya Sakshya Adhiniyam (U/S 157 Evidence Act)
  1. Questions tending to corroborate evidence of relevant fact, admissible – S 159
  1. Matters Which Could be proved in connection with proved statement relevant under section 26 or 27 (section 32 or 33 of the Evidence Act
  1. Provisions Relating to Refreshing Memory of Witness by Referring to Previous Writings
  1. Production of Documents When Ordered – The Court May Inspect the Document to Decide on the Validity of Objection
  2. The Manner of Claiming Privilege
  1. Greater Need of Transparency
  1. Sealed Cover Jurisprudence – Deprecated
  1. Giving, as evidence, of document called for and produced on notice
  1. Using, as evidence, of document production of which was refused on notice
  1. Judge’s power to put questions or order production

MODULE No. 28 – APPRECIATION OF EVIDENCE IN GENERAL

  1. Appreciation of Evidence – Meaning
  2. Legal Relevancy, Admissibility and Probative Value
  3. Substantive Evidence, Substantial Evidence and Corroborative Evidence
  4. Witnesses Testimony
  5. Interested Witness

a. Mere Relationship with the Victim is not a Reason to Brand a Witness as Interested

b. Related witness and interested witness

c. Categorisation of Witness in “Raju v State of Tamil Nadu”

d. Appreciation of the Evidence of an Interested Witness; Requirement of Caution

       6. Hostile Witness’ and Law as to the Appreciation of the Evidence of a ‘Hostile Witness’.

7. Sterling Witness

8. Chance Witness

9. Injured Witness

10. Rustic Witness

11. Official Witness

12. “Falsus in Uno, Falsus in Omnibus – Not A Mandatory Rule – The General Rule is That the Grain Should Be Separated from Chaff”

13. No Number of witnesses is Mandated for Proving a Fact

14. Sole Witness

15. Classification of Witness as (1) Wholly Reliable. (2) Wholly Unreliable and (3) Neither Wholly Reliable nor Wholly Unreliable

16. Summarising the Criteria for Evaluation of the Evidence of Sole Witness

17. Circumstantial Evidential

a. Failure To Explain Incrimination Circumstance Can Be Taken as A Link in The Chain of Circumstances

b. Motive As Additional Link in The Chain of Circumstance

c. Panchsheel Principles of Circumstantial Evidence

d. Summary of Law of Circumstantial Evidence

       18. Appreciation of Evidence of Rape Victim – Case Law

19. Admissibility of Evidence Procured by Improper or Illegal Means

20. Consequence Of Non-Raising of Objection on Mode of Proof

21. Provisions Embodying the Principles of Best Evidence Rule

22. Improper Admission and Rejection of Evidence – Section 169