ch 1 Bhartiya Sakshya Adhiniyam 2023 (BSA) Definitions

ch 1 Bhartiya Sakshya Adhiniyam 2023 (BSA) Definitions

• 1.
  Khakare V.S. BSA Bhartiya SakhsyaAdhiniyam 2023 KHAKARE V.S. Prof. NARAYANRAO CHAVAN LAW COLLEGE, NANDED (MS) ch 1 Application and Definitions
• 2.
  Khakare V.S. Evidence (Sakshya/lk{;) • Theword ‘evidence’ is derived from the Latin word ‘evidera’ which means ‘to show clearly; to make clear to the right; to discover clearly; to make plainly certain ; to ascertain; to prove’. • It includes words, things, witness, facts, inferences, and all those which are admissible as evidence under the law of evidence.
• 3.
  Khakare V.S. Cardinal principle ofthe law of evidence • C.J. M Monir -‘law of evidence is a system of rules for ascertaining controversial questions of fact in judicial inquires.’ • Sir James Stephen - ‘The law of evidence is that part of the law of procedure which, with a a view to ascertain individual rights and liabilities in individual case decide.... • 1: what facts may and what may not be proved in such cases, • 2: what sort of evidence must be given to a fact which may be proved, • 3; by whom and in what manner the evidence must be given by which any fact is to be proved.
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  Khakare V.S. ... • The cardinalprinciples of law of Evidence are... • 1: Evidence must be confined to the matter in issue. • 2: Hearsay evidence is not to be admitted. • 3: In all cases the best evidence must be given. • The law of evidence is ‘Lex Fori’ (the law of the country in which an action is brought) which governs the court. (Eg: competency of a witness, admission or rejection of evidence etc).
• 5.
  Khakare V.S. S.1: Applicability • ThisAct may be called the Bharatiya Sakshya Adhiniyam, 2023. • It applies to all judicial proceedings in or before any Court, including Courts-martial, but not to affidavits presented to any Court or officer, nor to proceedings before an arbitrator. • It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. (The Act is made applicable from 1st day of July 2024. )(The gazette of India CG-DL-E-24022024-252352 dt. 23rd February, 2024)
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  Khakare V.S. Judicial proceeding • Aninquiry is judicial if the object of it is to determine a judicial relation between one person and another. • A judicial proceeding includes any proceeding in the course of which evidence is or may be legally taken. • Judicial proceedings means proceedings in any court or before any person having by law or the consent of parties authority to hear, receive and examine evidence. • BSA : NA to quasi judicial proceedings; inquiries by tribunals; departmental inquiries; Arbitration proceedings;
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  Khakare V.S. Affidavit • Evidence Act(BSA) is not applicable to affidavits presented to court. • An affidavit is a formal written statement where the signer swears that the information in the document is true. The term comes from Latin and means "he or she has declared upon oath". It contains sworn statement based upon information, knowledge and belief. • But affidavits are accepted by the court as a mode of proof in civil and criminal proceedings. • Most of the application (particularly interlocutory), are supported by an affidavit.
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  Khakare V.S. Arbitrator • An arbitratoris a neutral third party that oversees the alternative dispute resolution method of arbitration. • The evidence Act (BSA) is not applicable to the proceedings before arbitrators. Arbitrators are not bound by the strict rules of law of evidence. It is expected that the principals or rules of Natural Justice apply to arbitrators. • Sec. 19 of Indian Arbitration and Conciliation Act 1996 states that, the provisions of The arbitral tribunal shall not be bound by the Code of Civil Procedure, or the Indian Evidence Act.
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  Khakare V.S. The rule ofevidence are generally same to civil and criminal proceeding. Still there are some exceptions.. CIVIL PROCEEDING CRIMINAL PROCEEDING 1 Issues may be proved by the preponderance of evidence 1 Issue must be proved beyond all reasonable doubt. 2 It is duty of parties, to see that all material evidence is on record. 2 It is the responsibility of court to see that for the justice, necessary evidence is on record. 3 Rules of evidence may be relaxed to some extent, by consent of parties. 3 Rule of evidence cannot be relaxed. 4 Provisions like estoppel, admission are more frequent. 4 Provisions like confession, dying declaration, are more frequent. 5 There is no presumption against or in favor of any party. 5 There is presumption of innocence in favor of accused. 6 The burden of proof is on plaintiff, and sometimes shifts on defendant. 6 The burden of proof is always on the prosecution. 7 No scope for benefit of doubt. 7 Benefit of doubt may be given by the court to the accused.
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  Khakare V.S. Some principles applicablefor criminal proceedings only 1. Accused is always presumed to be innocent until the prosecution proves him to be guilty. 2. Onus/burden of proof is always on prosecution to prove. 3. Evidence must be such as to exclude every reasonably doubt regarding the guilt of the accused. 4. In case of doubt regarding the guilt of the accused, it is safe to acquit accused by giving him benefit of doubt. 5. There must be clear and unequivocal proof of the corpus delecti i.e. the facts of crime.
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  Khakare V.S. Definitions • (1) Inthis Adhiniyam, unless the context otherwise requires,
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  Khakare V.S. (a) Court • (a)"Court" includes all Judges and Magistrates, and all persons, except arbitrators, legally authorized to take evidence;
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  Khakare V.S. (e) evidence • (e)"evidence" means and includes— • (i) all statements including statements given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence; • (ii) all documents including electronic or digital records produced for the inspection of the Court and such documents are called documentary evidence;
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  Khakare V.S. Kinds of evidence •Mainly the evidence produced before the court are of two types. • ORAL EVIDENCE • DOCUMENTARY EVIDENCE
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  Khakare V.S. S. 55: Oralevidence • Oral evidence shall, in all cases whatever, be direct; if it refers to,— • (i) a fact which could be seen, it must be the evidence of a witness who says he saw it; • (ii) a fact which could be heard, it must be the evidence of a witness who says he heard it; • (iii) a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; • (iv) an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds
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  Khakare V.S. • It isthe evidence confined to the words spoken by mouth. An oral evidence must be direct oral evidence. • All facts, except the contents of documents may be proved by oral evidence. (sec. 54) • Oral evidence shall, in all cases whatever, be direct. (sec. 55) • Eg. oral evidence by a person who actually who say he saw it; OR who says he heard it; OR who says he perceived it by that sense; OR person who holds that opinion.
• 17.
  Khakare V.S. (d) document • (d)"document" means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records. • Illustration: (i) A writing is a document. • (ii) Words printed, lithographed or photographed are documents. • (iii) A map or plan is a document. • (iv) An inscription on a metal plate or stone is a document. • (v) A caricature is a document. • (vi) An electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents;
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  Khakare V.S. Division of evidence.. 1.Documentary evidence 2. Oral evidence 3. Direct evidence. 4. Indirect evidence. 5. Circumstantial evidence, 6. Real evidence, 7. Personal evidence, 8. Original evidence, 9. Hearsay evidence 10. Primary evidence 11. Secondary evidence, 12. Judicial evidence, 13. Non judicial evidence, 14. Substantial evidence, 15. Corroborative evidence, 16. Prima facie evidence, 17. Conclusive evidence.
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  Khakare V.S. • 1. Documentaryevidence (sec. 2 (d) • 2. Oral evidence (sec. 55) • 3. Direct evidence: It is the testimony of a witness to the existence or non existence of the fact or facts in issue, (Eg.the evidence of a person who saw the actual commission of the act which constitute crime.) • 4. Indirect evidence: It is that evidence which tends to establish existence or non existence of the fact or facts in issue by proving another fact. (Eg. last seen person). • 5. Circumstantial evidence: It is testimony of a witness to other relevant facts from which the fact in issue may be inferred. (Eg. series of other facts, other than fact in issue; but found so associated with the fact in issue,)
• 20.
  Khakare V.S. • Circumstantial evidenceand indirect evidence are similar. • Circumstantial evidence is combination of facts creating a net without there being any tear through which the accused can escape. • Circumstantial evidence is like a rope made of many strands/filaments to stay together. No one of the filaments of which it is composed would be sufficient for there purposes (proving fact in issue) but collectively it may prove. • Circumstantial evidence include facts other than those in issue which are relevant factors from which the fact in issue may be inferred. • Circumstantial evidence should be conclusive in nature and they should be such as to exclude every hypothesis but that of guilt.
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  Khakare V.S. • There mustbe a chain of evidence, so that complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. • 6. Real evidence: It is that evidence which is addressed to the sense of the court by inspection of a physical object and not by information derived form a witness or document. (Eg. instrument of crime brought in the court; local investigation by the judge to know the actual place of incident) • The real evidence does not from part of the definition of evidence given as much as the court is in all cases the original percipient witness. The things so produced are relevant facts to be proved by the ‘evidence’ i.e. by oral testimony of those who know of them. The court may require the production of such things for its inspection.
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  Khakare V.S. • 7. Personalevidence: It is that evidence which is afforded by a human agent. (also known as oral evidence). • 8. Original evidence: It is that testimony which a witness reports himself to have seen or heard through the medium of his own sense. (also known as direct evidence). • 9. Hearsay evidence: It may defined as testimony of a witness regarding the fact which was not seen by him about which he heard. • It is testimony of a witness as to statements made out of court which are offered as evidence of their own truth. • It is also known as second hand evidence. It is not a direct evidence. • Hear say evidence is not a direct evidence and having following meaning...
• 23.
  Khakare V.S. • a: hearsaymeans whatever a person is heard to say; • b: it means whatever a person declares on information given by some one else; • c: it may mean to by synonymous with irrelevant. • Hearsay evidence is generally inadmissible. But there are some exceptions to this. • Exception i: if a statement made outside the court by a person who is not a witness; may be a matter in issue OR it may be part of the circumstances which it is essential to ascertain. (in cases of defamation; ) • Exception ii: statement u.sec. 26 (dying declaration)
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  Khakare V.S. • Exception iii:Relevancy of certain evidence for proving, in subsequent proceeding, (sec. 27) • Exception iv: facts forming part of same transaction (Res Gestae). (sec. 4) • 10. Primary evidence: Primary evidence is original, first-hand information or data that is collected through observation, experimentation, or documentation. • It is evidence which from its own production, shows to admit of no higher or superior sense of evidence. • It is called as best evidence and considered to be more reliable and credible than secondary evidence. • A primary evidence can be documentary or oral evidence.
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  Khakare V.S. • But primaryevidence generally refer to primary documentary evidence. • Primary evidence means the document itself produced for the inspection of the Court. (sec. 57) • 11. Secondary evidence: It is inferior to primary evidence and can be given in the absence of the primary evidence. • Sec. 58, secondary evidence includes, certified copies; copies made form original by using mechanical process; counterpart of documents; oral accounts of contents of documents; oral admissions; written admissions; evidence of person in case of numerous accounts or document which cannot be conveniently be examined in the court.
• 26.
  Khakare V.S. • 12. Judicialevidence: It is evidence received by the court in proof or disproof of facts, the existence of which comes in question before him. • 13. Non judicial evidence: It is evidence given in the proceedings before the Magistrate or officer , not in a judicial capacity , but in an administrative capacity. (Eg. sue as pauper; readmit suit; delay condonation; property valuation etc.) • 14. Substantial evidence: The evidence offered to support a fact in issue, as to the necessary elements of the case, as opposed to evidence that goes to procedural or collateral issues.
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  Khakare V.S. • 15. Corroborativeevidence: It is a collection of facts and information that supports someone's story or strengthens existing evidence. In courts, it's used to support witness testimony. • 16. Prima facie evidence: Prima facie evidence is a Latin term that means "at first sight" or "on its face". In legal contexts, it refers to evidence that appears to be sufficient to prove a fact unless contradicted by additional evidence • 17. Conclusive evidence: The fact of which the court is bound to take judicial notice without taking any other proof is known as conclusive evidence. (Eg. law; judgment) • It is so strong that it cannot be contradicted by any other evidence and compels a fact-finder to reach a specific conclusion.
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  Khakare V.S. (f) fact • (f)"fact" means and includes— • (i) any thing, state of things, or relation of things, capable of being perceived by the senses; • (ii) any mental condition of which any person is conscious. • Illustrations. • (i) That there are certain objects arranged in a certain order in a certain place, is a fact. • (ii) That a person heard or saw something, is a fact. • (iii) That a person said certain words, is a fact. • (iv) That a person holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact;
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  Khakare V.S. • Something thatyou know has happened or is true or reality. • Fact means an existing things and does not refer to a mental condition of which a person is conscious. But as defined, it is not limited to tangible or visible or the object of senses. It include feelings, opinion, state of mind. • Things: a material object; entity; creature; circumstances; action; deed; event; occurrence; particular; details; weapon; utensil; implements; property; etc. • State of things: Condition; mode of being; social position; policy; structure, form; • Relation of things: legal relation; property, person, corrector.
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  Khakare V.S. • Mental condition:Intention; knowledge; food faith; negligence, rashness; ill will; good will; voluntarily; accidentally; fear; anger; etc. • Fact classification / kinds.. • Physical fact: An event having a corporeal existence, as distinguished from a mere conception of the mind; one that is visible, audible, or tangible. • Psychological fact: A psychological fact is a fact related to a person's mental state, such as their motives or knowledge. • Positive fact: a positive fact is a situation or state of things that can be confirmed to exist. • Negative fact: a negative fact is a situation or state of things that
• 31.
  Khakare V.S. • Facta probanda:Facta probanda is a Latin term that means the facts that need to be proven, or material facts. It refers to the core allegations or assertions that a party needs to establish to win a legal claim or defense. • It is the facts required to be proved. (Transaction; documents involved; Pleading; facts constituting cause of action; issues involved.) • Facta probantia: Facta probantia is a legal maxim that refers to a fact that is presented as evidence to prove another fact. It can be used to prove documents, testimony, hearsay, and other evidentiary facts. • It is the facts by means of which they are to be proved. (fact produced in support of pleading, issues as evidence).
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  Khakare V.S. (g) facts inissue • (g) "facts in issue" means and includes any fact from which, either by itself or in connection with other facts, the existence, non- existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows. • Explanation.—Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue. • ...
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  Khakare V.S. ... • Illustrations. • Ais accused of the murder of B. At his trial, the following facts may be in issue:— • (i) That A caused B's death. • (ii) That A intended to cause B's death. • (iii) That A had received grave and sudden provocation from B. • (iv) That A, at the time of doing the act which caused B's death, was, by reason of unsoundness of mind, incapable of knowing its nature;
• 34.
  Khakare V.S. FACTS Existence Non- existence Nature Extent Right Liability Disability Asserted Denied Followed in Suit Or Proceeding Civil / Criminal Decision
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  Khakare V.S. • 1. Factin issue: are facts out of which some legal right, liability or disability involved in the inquiry, necessarily arises, and upon which, accordingly a decision must be arrived at. • 2. Fact in issue: are those facts which are alleged by one party and denied by the other party in the pleading in a civil case or alleged by prosecution and denied by the accused in a criminal case. • 3. What facts are in issue in a particular case is a question to be determined by the substantive law. OR by in some cases, by procedural law which regulates the form of pleadings, civil or criminal.
• 36.
  Khakare V.S. • (k) "relevant".—Afact is said to be relevant to another when it is connected with the other in any of the ways referred to in the provisions of this Adhiniyam relating to the relevancy of facts.
• 37.
  Khakare V.S. Fact in issueRelevant fact 1. are the matters which are in dispute. 2. is necessary ingredient of right or liability. 3. is called as principal fact. 4. are actual in issue. 1. are facts so connected with each other as to prove or disprove the facts in issue. 2. is not necessary ingredient of right or liability. 3. is called as evidentiary fact. 4. are not actual in issue but are foundation of inferences regarding them.
• 38.
  Khakare V.S. (j) proved • (j)"proved".—A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
• 39.
  Khakare V.S. (c) disproved • (c)"disproved" in relation to a fact, means when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist;
• 40.
  Khakare V.S. (i) not proved •(i) "not proved".—A fact is said to be not proved when it is neither proved nor disproved;
• 41.
  Khakare V.S. (h)may presume • (h)"may presume".—Whenever it is provided by this Adhiniyam that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it;
• 42.
  Khakare V.S. (l) shall presume •(l) "shall presume".—Whenever it is directed by this Adhiniyam that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.
• 43.
  Khakare V.S. Facts produced MayShall Conclusive proof Yes Proved Proved Proved -,,- Disproved Disproved x -,,- Additional evidence x x
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  Khakare V.S. (b) Conclusive proof •(b) "conclusive proof" means when one fact is declared by this Adhiniyam to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it;
• 45.
  Khakare V.S. Presumptions • Assumption andpresumption are both nouns that mean to accept something as true without proof. However, presumption is based on reasonable grounds or probable evidence, while assumption is a guess with no proof. • Presumption: is denotes an inference; affirmative or dis-affirmative of the truth or falsehood of a doubtful fact or proposition, drawn by a process of probable reasoning from something proved or taken for granted. • Presumption: means things taken for granted. Presumptions are drawn from the course of nature or from the course of human affairs, from the usage of society and transactions in business.
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  Khakare V.S. Eg. • presumption ofinnocence; suspicion of offence due to absconding; presumption as to domestic and business relations; behavior of person in different circumstances; legitimacy of child; ownership and possession; messages; documents; business and other transactions; as to dowry death; forensic science;
• 47.
  Khakare V.S. Kinds of presumptions 1.Presumption of fact OR natural presumption. 2. Presumption of law OR artificial presumption. a) Rebuttable presumption; b) Irrbuttable presumption (conclusive presumption) 3. Mixed presumption or presumptions of mixed law and fact.
• 48.
  Khakare V.S. Presumption of fact •Presumptions of fact or natural presumptions are inferences which the mind naturally and logically draws from given facts, irrespective of their legal effect. • These are always rebuttable. • Court may presume certain facts or call for confirmatory proof of them. • These are derived by own experience. • Eg: foreign judgments and records; books, maps, charts; electronic message; documents 30 year old; abatement of suicide by married women etc.
• 49.
  Khakare V.S. Presumption of law •Presumption of law. • It is of two types. • 1. Rebuttable presumptions. • 2. Irrbuttable presumptions. • Rebuttable means to refute ( to prove wrong by argument or evidence), counteract, or disprove something using evidence or argument.
• 50.
  Khakare V.S. Rebuttable presumption • Suchpresumptions arise when presumptions of law are certain legal rules, defining the amount of evidence requisite to support a particular allegation, which facts being proved, may be either explained away or rebutted by evidence to the contrary but are conclusive in the absence of such evidence. • Eg: presumption of innocence of accused; legitimacy of child born out of wedlock; certified copies; maps, chart published by Central/State Government; power of attorney; presumption in dowry death case; absent of consent in cases of rape; estoppel; etc.
• 51.
  Khakare V.S. Irrebuttable presumption • Itis also known as conclusive presumption. • Such presumptions of law cannot be overcome by any evidence. • Eg: no offence by child below 7 year of age; judgment; circular; notifications;
• 52.
  Khakare V.S. Mixed presumption • Itis mixed presumption or presumption of fact and law. • These are in truth a sort of quasi presumptions juris. • The principles of such presumptions are only reflected in the English which specifically deals with statute of real property. But in the Indian legal system, the principles of presumptions are expressed specifically.
• 53.
  Khakare V.S. presumption of fact....presumptionof law • Inference may or may not be drawn. • It is not rules of law. • Court not bound to take up at beginning of case. • Court has discretion to accept inference. • Always rebuttable. • Court may ignore. • Inference must be drawn. • It is rules of law. • Court is bound to take up before hand. • Court has to accept inference. • Rebuttable or irrebuttable. • Court cannot ignore.
• 54.
  Khakare V.S. Presumption of Fact (May presume ofLaw (artificial) Rebuttable (Shall presume) Irrbuttable (Conclusive proof)
• 55.
  Khakare V.S. (k) relevant • (k)"relevant".—A fact is said to be relevant to another when it is connected with the other in any of the ways referred to in the provisions of this Adhiniyam relating to the relevancy of facts;
• 56.
  Khakare V.S. • 2) Wordsand expressions used herein and not defined but defined in the Information Technology Act, 2000, the Bharatiya Gagarin Suraksha Sanhita, 2023 and the Bharatiya Nyaya Sanhita, 2023 shall have the same meanings as assigned to them in the said Act and Sanhita.
• 57.
  Khakare V.S. 15th May 2024