PIII IIS FE VI SHE KE UKEEUETVYVUHKHHOHSWEHHHSHHHHOS R. Bhergevi 2p BHARATIYA SAKSHYA ADHINIYAM 2023 | 3 AND 5 YEARS LLB UNDER KARNATAKA STATE LAW UNIVERSITY AS PER NEW SYLLABUS UNITWISE DETAILED NOTES EDITION-I (YEAR 2025) BY ANIL KUMAAR K T, BA, MSW, LLB, LLM & (Ph.D.) Mob: 9584416446Introducti Distinction between substantive and procedural law Substantive law defines the rights and obligations of citizens, while procedural law establishes the rules for how the court system operates: ‘ Substantive law u Defines the law, including the rights and obligations of citizens, the elements « of a crime, and the penalties to be imposed. It also provides the basis for legal actions and defenses. For example, criminal law defines what behavior is illegal and what the government must prove to convict someone of a crime. « + Procedural law Establishes the rules of the court and how to enforce legal rights. It includes ‘ rules about jurisdiction, evidence, how witnesses are questioned, and how objections are handled. Procedural law also applies to civil court 4 proceedings. ‘ Procedural law lays the foundation for the legal process while substantive law 4 focuses on the rights and responsibilities that govern our societal interactions ‘ [Procedural Law _ \Substantive Law _ a Focuses on the process of adjudication Dictates rights, duties, and | ' [punishments [Ensures fair trial Defines legal relationships q IDictates how facts are presented in court _ (Establishes facts that are the basis for 2 l_ la legal action |Guides the process of legal proceedings __|Deals with the merits of a case | j Provides the machinery for enforcing rights [Provides the substance for what is d land obligations lenforced ’ Rules can vary based on jurisdiction Laws are generally consistent across 7 jurisdictions _ 4 May not directly impact the outcome of a [Directly impacts the legal outcome 2 lcase _ [Pertains to the ‘how’ of law Pertains to the ‘what’ of law . Provides the steps for judicial action Forms the basis for the initiation of a_| a ee lawsuit 3 INo penal provisions (Contains penal provisions Evidence in customary law systems 36eee8se PSPC HeS IS HI HT SVP HF VIMKYHBHHVHHHS The Constitution of India, under Article 13, treats customary law along with other branches of civil law. A custom or usage if proved would be law in force under this article. These customary rights having the force of law can be taken judicial notice by courts under Section 57 of the Indian Evidence Act 1872 Evidenc customary law systems can include: Opinion evidence Members of the customary group can provide opinion evidence about the existence of a custom or rule. Expert evidence Outside experts can provide evidence about local customs. Judicial notice Courts can take judicial notice of customs that are frequently proven or notorious. ‘ Written documents Some national court systems permit proof of customary law through written documents or prior legal decisions. Customary law is based on long-standing traditions, customs, and rules that a community accepts as binding. It is often administered at the local level, but in some countries, itis preree within the modern court system. Some elements that are considered when evaluating customary law include: Uninterrupted practice: The custom must have been practiced consistently. Peaceful practice: The tradition should have been followed without dispute. Clarity and precision: The custom must be clear and defined. Reasonableness: The custom must be rational and beneficial to society. Alignment with statutory laws: The custom must align with existing statutory laws. Basic principles of evidence The fundamental rules of the Law of Evidence provide the framework for the admissibility, relevancy, and weight of evidence in legal proceedings. These rules help ensure fairness, reliability, and the proper administration of justice. Fundamental Rules1. Relevance: Evidence must be relevant to the case at hand. It should have a logical connection to the facts in dispute and assist in proving or disproving those facts. Irrelevant evidence is generally not admissible . Admissibility: Not all evidence is automatically admissible. There are various rules and exceptions that determine the admissibility of evidence. For example, evidence obtained illegally or in violation of constitutional rights may be excluded . Burden of Proof: The burden of proof lies with the party asserting a particular fact. It is the responsibility of that party to present sufficient evidence to persuade the court of the truth of the fact in question. - Presumption of Innocence: In criminal cases, the accused is presumed innocent until proven guilty beyond a reasonable doubt. The prosecution bears the burden of proving the guilt of the accused. Hearsay: Hearsay refers to an out-of-court statement offered for the truth of the matter asserted. Generally, hearsay is not admissible unless it falls within an exception or is allowed under specific circumstances. . Best Evidence Rule: The best evidence rule states that the original or primary evidence should be presented in court whenever possible. Copies or secondary evidence may be admissible in éertain situations, but the original is preferred. . Competency and Compeliability of Witnesses: Witnesses must be competent to testify, meaning they have the capacity to understand and communicate the relevant information. Compellability refers to whether a witness can be forced to testify. Privilege: Privilege provides certain individuals, such as lawyers, doctors, or spouses, with the right to refuse to disclose certain information in court. Privileged communications are generally protected from being used as evidence. . Opinion and Expert Testimony: Opinions of witnesses are generally not admissible, except when given by an expert witness who possesses specialized knowledge or skills in a particular field relevant to the case. 10.Character Evidence: Generally, evidence of a person’s character or reputation is not admissible to prove conduct in accordance with that character. However, character evidence may be admissible in-certain limited circumstances. é ke se fe j&odd Pe eeVKOUVUEeEeFUVHOeHEREHTHOE ECHOES 11.Judicial Discretion: The court has the authority to exercise discretion in matters related to evidence, including determining the admissibility, exclusion, or weight of evidence. The court ensures that the evidence presented is fair, relevant, and in compliance with legal principles. Evidence under civil and criminal procedures Rules of evidence in civil and criminal proceedings include: Admissibility Evidence is only admissible if it's relevant and tends to indicate that a fact in issue is more or less likely. Burden of proof i In civil cases, the plaintiff usually has the burden of proof, while in criminal cases, the prosecution has the burden of proof. , Types of evidence Evidence can be direct, which is based on personal knowledge, or circumstantial, which is everything else. dards of evidence reasonable doubt. Spec of evidence range from reasonable suspicion to beyond a Principles of law of evidence Evidence must be confined to the matter in issue, hearsay evidence must not be admitted, and best evidence must be given in all cases. Other rules of evidence include: Authentication, privilege, witnesses, opinions, expert testimony, identification, and rules of physical evidence. Salient features of the Bharatiya Sakshya Adhiniyam The Bharatiya Sakshya Adhiniyam 2023, includes the explicit admissibility of digital and electronic evidence. It ensures they are treated appropriately in court proceedings. It also introduces clearer definitions and streamlined legal processes to expedite judicial efficiency and safeguard witness protection. Admissible Evidence Similar to the IEA, the BSA stipulates that only admissible evidence is allowed in legal proceedings. Admissible evidence is classified as either ‘facts in issue”or ‘relevant facts’. Facts in issue refer to any fact that can determine the existence, nature, or extent of any right, liability, or disability contested in legal proceedings. Relevant facts are those that are materially related to the case The types of evidence include documentary evidence and oral evidence. Proved Fact A fact is considered proved when, based on the evidence presented, the Court believes it either (i) exists, or (ii) its existence is so probable that a rational person would act on the assumption that it does exist in the context of the case. Police Confessions Confessions made to a police officer are considered inadmissible, as. are confessions made while in police custody unless recorded by a Magistrate. An exception exists if a piece of information, received from the accused in custody, leads to the discovery of a new fact distinctly related to the information received, which can be admitted as evidence. Documentary Evidence Under the IEA, a document encompasses writings, maps, and drawings. The BSA expands this definition to include electronic records as documents. Documentary evidence comprises primary and secondary evidence. Primary evidence includes the original document and its subsidiary parts, such as electronic records and video recordings. Secondary evidence includes documents and oral accounts that can prove the content of the original. The BSA retains these classifications while expanding the scope to cover digital records. Oral Evidence The IEA defines oral evidence as statements made before the courts by witnesses regarding facts under inquiry. The BSA modernizes this provision by allowing oral evidence to be given electronically. This permits witnesses, accused persons, and victims to testify via electronic means, thereby enhancing accessibility and efficiency. lectronic or Digital Records as Evidence 4 jee eee ene em ee bk .%e 18 @ e @ e 6 Ss s Ss o Ss é) 2 >. > Dd o> » es 2» > > . % 9° Documentary evidence now includes electronic records that have been stored in optical or magnetic media produced by a computer. These records, whether stored or processed by a combination of computers or different computers, are now recognized with the same legal validity as paper records. The BSA further expands this to include information stored in semiconductor memory and other communication devices such as smartphones and laptops. This encompasses a wide array of electronic records, including emails, server logs, locational evidence, and voicemails. Secondary Evidence The BSA broadens the scope of secondary evidence to include (i) oral and written admissions, and (ii) the testimony of a person who has examined the document and possesses the expertise in document examination. Secondary evidence may be required under various conditions, such as when the original is in the possession of the person against whom the document is sought to be proved or when the original has been destroyed. The BSA adds that secondary evidence may also be required if the authenticity of the document is questioned Joint Trials A joint trial refers to the trial of many persons for the same offense. The IEA stipulates that in a joint trial, if a confession made by one of the accused persons affects the others, it will be treated as a confession against all concerned. The BSA adds clarity to this provision by stating that if an accused person has absconded or has not responded to an arrest warrant, the trial will still be considered a joint trial Applicability of the Bharatiya Sakshya Adhiniyam The Bharatiya Sakshya Adhiniyam 2023, is a significant legislative reform aimed at replacing the Indian Evidence Act of 1872. This new Act modernizes the Indian legal framework for the admissibility and evaluation of evidence in judicial proceedings. It incorporates contemporary technological advancements, recognizing electronic and digital evidence. It aligns with current legal standards to address the complexities of the modern judicial landscape. The Act also seeks to rectify inconsistencies and provide clearer guidelines on evidence admission. It enhances protections against custodial injustices and streamlines the legal process to ensure fairness and efficiency.The Indian Evidence Act, 1872 (IEA) governs the admissibility of evidence in Indian Courts. It applies to all civil and criminal proceedings. Over the years, ‘ the IEA has been amended to align with certain criminal reforms and technological advancements. In 2000, the IEA was amended to provide for the , admissibility of electronic records as secondary evidence. In 2013, it was ‘ amended to add provisions related to consent in cases of rape. It shifted the onus on the accused to prove that consent was given, and added that the character of the victim and her sexual history will not be relevant when ‘ determining consent. The Law Commission has examined the IEA on multiple occasions and suggested amendments on matters such as custodial violence, admissibility of police confessions, and cross-examination. For more details on key recommendations made by the Law Commission. The Bharatiya Sakshya Bill, 2023 (BSB) was introduced in Lok Sabha on August 11, 2023. It seeks to replace the IEA. THe Standing Committee on Home Affairs examined the Bill. The Bharatiya Sakshya (Second) Bill, 2023 was introduced on December é 12, 2023 after the earlier Bill was withdrawn. It incorporates most of the suggestions made by the Standing Committee on Home Affairs d ‘The Indian Evidence Act, 1872 (IEA) has been replaced by the Bharatiya Sakshya Adhiniyam, 2023 (BSA), marking a significant step towards modernizing India's justice delivery system. This new legislation aims to streamline, modernize and simplify the presentation and interpretation of evidence in court. Central conceptions in law of evidence Evidence is either written or unwritten, of allegations in issues between the parties”. “Evidence is something, including testimony, documents and tangible objects that tends to prove or disprove the existence of an alleged act.” 7. “Evidence is something which ascertains the truth of the fact or print in question”. Some central conceptions in the law of evidence include: Evidence must be relevant Evidence must be relevant to the case and likely to prove what it is presented to prove. Irrelevant information can distract from the facts and cloud the court's judgment. 4 d < 4 4 d 4 < 4 < Evidence must be reliable6 ° PIIIIIIVIIVoeswss vr sIsvvvvsvs oss SHOBEBS The law of evidence has rules to ensure that evidence is trustworthy and not fabricated or misleading. Both parties must have a fair chance to present their case The law of evidence establishes procedures for both sides to introduce evidence and challenge the other side's evidence Hearsay evidence is not admissible Hearsay evidence does not have evidentiary value. Evidence can be presented in different forms Evidence can be presented as oral testimony, documentary evidence, real evidence, or demonstrative evidence. Estoppel prevents false evidence The law of evidence prohibits people from making contradicting statements incourt. Facts- Facts in issue and relevant facts Facts: A fact is an information that is represented as factual or as representing reality. Facts are objective, empirical pieces of knowledge that describe real- world occurrences or circumstahces. They are tangible characteristics of an incident, circumstance, statement, object, historical event date, and so on that may be demonstrated to be true or false. Fact in issue: In a legal dispute, a fact in issue is a fact that is directly questioned or argued by the parties involved in the legal procedure. These are the facts that are directly related to and determine the allegations, claims, or main issues raised in the case. These legally significant factual elements make up the basis of the dispute, and itis essential to establish them to determine the parties’ essential rights and duties concerning occurrences of events relevant to the proceedings, such as a crime, violation of contract, and so on. For instance, in a criminal case, the fact in question may be whether the defendant committed the crime for which they are charged. Relevant Facts: Along with the facts at hand, there are extra factual aspects that influence interpretations or the trustworthiness of the main evidence. Relevant facts are pieces of information that have an impact on the subject at issue. These pertinent facts provide supplemental information that provides further insight into the possibility, consequences, or broader context of the situation at issue. They may corroborate or challenge information in a disputewithout directly influencing the outcome. They are admissible as evidence in court because they can assist the judge or jury in comprehending the case and reaching a fair verdict. Witness testimony, physical evidence, and expert views are examples of relevant facts. Not all facts are relevant, and only those with logical relevance to the issue at hand will be taken into account. In DPP vs Kilbourne, 1973, Lord Simon of Glaisdale said, “Evidence is relevant if it is logically probative or disprobative of some matter which requires proof. Relevant evidence is evidence that makes the matter which requires proof more or less probable.” Facts: Anything, state of things, or relationship of things that can be sensed (external fact). For example, (i) itis a fact when certain things are placed in a specific way or pattern. (ii) tis'a fact when someone sees or hears something. (iii) The words stated by a person are facts. Any mental condition that a person is aware of is an internal fact. For example, (i)consider a person's viewpoint. (ii)A person's intentions. (iiJA person who is acting in good faith or fraudulently. (iv)A person's intentional choice of words (v)Experiencing a certain sensation at a specific time. (vi)The reputation of a person.©6886 vevvvvuvvvvs ve vooveueuuoeeeeeged ‘Two types of facts under evidence act: Two kinds of facts provided under section 3 under the definition of fact that’s are: 1. Physical facts 2. Psychological facts Physical Facts: Physical facts are factual situations connected to tangible elements in a situation that may be directly observed, measured, or verified using empirical evidence. They are based on true observations made by human senses related to real-world material circumstances and happenings. Examples include visible features such as a person’s appearance or injuries, things left at a crime scene, arid so on; audible details such as overheard statements, noises, and so on; and measurable physical states such as vehicle speed, property damage, and so on. Physical evidence is based on sensory findings that are more objective and less disputable. This realm includes forensic, trace, and physical evidence Psychological facts: Intangible inner components of human psychology, like emotional states, knowledge, beliefs, motivations, personality traits, and so on, are all covered by psychological facts. These cannot be immediately detected physically, yet they frequently manifest as outwardly observable expressions, communications, and behaviors. To demonstrate inner mental states that influence outer behavior, psychological facts depend more on circumstantial evidence and verbal testimony. Examples include aggressive inclinations, sorrowful reactions, biases, motivations for behaviors, and so forth. 2.Facts in issue: The facts in issue are those that are required to be proven, and they are also known as “principal facts” or factum probandum. When the parties’ rights and liabilities are based on a facts that is in dispute or disagreement, that fact is in issue.Proof of facts in issue decides the merits and outcomes of cases,For example, ‘X’ is accused of defamation for defaming ‘Y’. The following facts could be at issue: ‘x’ harmed ‘Y’s reputation; ‘Y’s business suffered damages as a result of “X's defamation; ‘Xx’ authored and published defamatory comments about ‘Y” with malice, etc. The facts in the issue define both the plaintiffs’ and defendants’ arguments. To persuade the court’s decision in their favor, the parties must demonstrate that the facts in dispute favor their pleas. What constitutes the facts in dispute is determined by the substantive law applicable to the offense. In criminal proceedings, the facts in question are determined by the contents of the charge sheet, whereas in civil trials, issues are framed. \ The facts in the issue serve as the foundation for the parties’ arguments, and when these facts are proven to the court’s satisfaction, a decision can be made. 3.Relevant facts: Relevant facts are those that are required to prove or disprove a given fact. Relevant facts are sometimes known as evidential facts (factum probans). These facts are not in issue — they are not the primary root of the dispute or argument between the parties. Rather, pertinent or evidentiary facts delve deeper into the background or circumstances of the facts in hand, allowing inferences to be drawn about them. Admissions and confessions, declarations by those who are not witnesses, precedents from case laws, statements made under special circumstances, facts that form a chain of rational thought with the facts in issue, third- party opinions, and evidence as to a person’s character are all examples of relevant facts. Relevant facts suggest a relationship between facts that, based ona reasonable chain of logic and common sense, either prove or disprove each other’s existence. Relevant facts serve as supplemental material to persuade the court's view in favor of the party making the argument regarding the facts atissue, For example, ‘A’ is suspected of stealing. An important piece of information is that ‘A’ has a history of pick-pocketing and shoplifting and has previously been prosecuted. The question would be whether A committed stealing.> @ oe @oo Vue Ue vee EEE eEEYOwUEYHHOHHOHOOHOHHOS Document ~ Proved, disapproved, not approved Under the Bharatiya Sakshya Adhiniyam, a fact is considered "proved if the court believes it exists or considers it likely enough to act on the assumption that it does. A fact is "disproved" if the court believes it does not exist or considers it unlikely enough to act on the assumption that it does. A fact is "not proved" if it is neither proved nor disproved. The Bharatiya Sakshya Adhiniyam includes electronic records in the definition of documents and states that all documents must be admissible as primary evidence. However, there are some exceptions, such as when the original document has been destroyed or is in the possession of the person against whom it is being proved. Electronic records also require certificate authentication to be admissible as documents. “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; "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. May presume, shall presume and conclusive proof 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 itis disproved or may call for proof of it; “not proved". - A fact is said to be not proved when it is neither proved nor disproved; "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;“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; “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. Words and expressions used herein and not defined but defined in the Information Technology Act, 2000,(21 of 2000) the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Bharatiya Nyaya Sanhita, 2023 shall have the same meanings as assigned to them in the said Act and Sanhitas. Conclusive proof “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. Closely connected facts section 4 to 14 Section 4 Facts which, though not in issue, are so connected with a fact in issue or a relevant fact as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. illustrations. (a) Ais accused of the murder of B by beating him. Whatever was said or done by Aor B or the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact. (b) A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and jails are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them. See ECE caiaaa Lk €eee8 ©eooes IVIIVS IIE VE VEE KTDHHTYVEWBULYYOS (c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself. (d) The question is, whether certain goods ordered from B were delivered to A, The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact Section 5 Facts which are occasion, cause or effect of facts in issue or relevant facts. Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant illustrations (a) The question is, whether A robbed B. The facts that, shortly before the robbery, B went to a fair with money in his possession, and that he showed it, or mentioned the fact that he had it, to third persons, are relevant. (b) The question is, whether A murdered B. Marks on the ground, produced by a struggle at or near the place where the murder was committed, are Felevant facts. Section 6_Motive, preparation and previous or subsequent conduct. (1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. (2) The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person, an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1.--The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Adhiniyam.Explanation 2.-When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant. Illustrations. (a) Ais tried for the murder of 8. The facts that A murdered C, that B knew that Ahad murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant. (b) A sues B upon a bond for the payment of money. B denies the making of the bond. The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose, is relevant. (c) Ais tried for the murder of B by poison. The fact that, before the death of B, A procured poison similar to that which was administered to B, is relevant. Section 7 Facts necessary to explain or introduce fact in issue or relevant « facts. Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or a relevant fact, or which establish the identity of anything, or person whose identity, is relevant, or fix the time or place at Which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they ate necessary for that purpose. Hiustrations. (a) The question is, whether a given document is the will of A. The state of A's property and of his family at the date of the alleged will may be relevant facts. (b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter alleged to be libellous is true. The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue. The particulars of a dispute between A and B about a matter unconnected with the alleged libel are irrelevant, though the fact that. there was a dispute may be relevant if it affected the relations between A and B Section 8 Things said or done by conspirator in reference to common design. é 4 d < d d 4 < < . ack és khCHUOCECOCHEHOHE HOW eevevewvvvoevueee bev &beee ve Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. illustration Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the State. The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Kolkata for a like object, D persuaded persons to join the conspiracy in Mumbai, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Singapore the money which C had collected at Kolkata, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A's complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have,taken place before he joined the conspiracy or after he left it. Section 9 When facts not otherwise relevant become relevant. Facts not otherwise relevant are relevant-- (1) if they are inconsistent with any fact in issue or relevant fact; (2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. Mlustrations. (a) The question is, whether A committed a crime at Chennai on a certain day. The fact that, on that day, A was at Ladakh is relevant. The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant. (b) The question is, whether A committed a crime. The circumstances are such that the crime must have been committed either by A, B, Cor D. Every factwhich shows that the crime could have been committed by no one else, and that it was not committed by either B, C or D, is relevant. Section 10 Facts tending to enable Court to determine amount are relevant in suits for damages. In suits in which damages are claimed, any fact which will enable the Court to determine the amount of damages which ought to be awarded, is relevant Section 11 Facts relevant when right or custom is in question. Where the question is as to the existence of any right or custom, the following facts are relevant- {a) any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence; . (b) particular instances in which the right or custom was-claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from. Illustration. The question is, whether A has a right to a fishery. A deed conferring the fisheryjon A's ancestors, a mortgage of the fishery by A's father, a subsequent grant of the fishery by A's father, irreconcilable with the mortgage, particular instances in which A's father exercised the right, or in which the exercise of the right was stopped by A's neighbours, are relevant facts. Section 12 Facts showing existence of state of mind, or of body or bodily feeling. Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or goodwill towards any Particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant. Explanation 1.~-A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question. Explanation 2.--But where, upon the trial of a person accused of an offence, the previous commission by the accused of an offence is relevant within the €@k Rk B&B BR & & & & GB M& Me BE fe Th mm fe oe aN mm me mmCoos 6 @ VUE UOOL CVU ewww uevuUUEUOUBEUdUS meaning of this section, the previous conviction of such person shall also be a relevant fact. Illustrations. (a) Ais accused of receiving stolen goods knowing them to be stolen. It is proved that he was in possession of a particular stolen article. The fact that, at the same time, he was in possession of many other stolen articles is relevant, as tending to show that he knew each and all of the articles of which he was in possession to be stolen. (b) A is accused of fraudulently delivering to another person a counterfeit currency which, at the time when he delivered it, he knew to be counterfeit. The fact that, at the time of its delivery, A was possessed of a number of other pieces of counterfeit currency is relevant. The fact that A had been previously convicted of delivering to another person as genuine a counterfeit currency knowing it to be counterfeit is relevant. (c) A sues B for damage done by a dog of B's, which B knew to be ferocious. The fact that the dog had previously bitten X, Y and 2, and that they had made complaints to B, are relevant. Section 13 Facts bearing on question whether act was accidental or entional. When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant. Illustrations. {a) A is accused of burning down his house in order to obtain money for which itis insured. The facts that A lived in several houses successively each of which he insured, in each of which a fire occurred, and after each of which fires A received payment from a different insurance company, are relevant, as tending to show that the fires were not accidental. (b) Ais employed to receive money from the debtors of B. Itis A's duty to make entries in a book showing the amounts received by him. He makes an entry showing that on a particular occasion he received less than he really did receive. The question is, whether this false entry was accidental or intentionalThe facts that other entries made by A in the same book are false, and that the false entry is in each case in favour of A, are relevant. Section 14 Existence of course of business when relevant. When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact. Illustrations. (a) The question is, whether a particular letter was dispatched. The facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that particular letter was put in that place are relevant. (b) The question is, whether a particular letter reached A. The facts that it was posted in due course, and was not returned through the Return Letter Office, are relevant. Admissions- Definition, Relevancy and admissibility, Privileged admissions, An admission, as defined under Section 15 of the BSA, is any statement, whether oral or written, made by a person which suggests any inference as to any fact in issue or relevant fact. It is a statement that acknowledges or implies the truth of a fact in dispute, Admissions can be made in both civil and criminal cases. What is Relevancy of facts Relevancy of facts under BSA means connection of two events as cause and effect.So,it is a connection between two facts such that the existence of one fact makes the existence of other fact probable or improbable. This is called logical relevance based on deductive reasoning.Relevancy of fact is that under which the fact that is related to fact in issue or relevant fact in one or the other way specified in BSA. Section 2(1)(k) of the Bharatiya Sakshya Adhiniyam,2023 (BSA) defines a relevant fact which means a fact is considered relevant if it is connected to another fact as specified in Sections 4 to 50 of the BSA.This connection helps in establishing or disproving the facts in issue. Relevancy is about how one fact impacts the probability or improbability of another fact, which is often determined through logical reasoning. Key Components of Relevancy of facts & & ‘( 9229 23229 PIVCVOVUVEBUUUUTUEYUYEOUEGCCSCEHOOOCCEESS Connection:Two facts are connected in a way that the presence of one fact makes the existence of the other more or less likely. Legal Framework: Sections 4 to 50 of the BSA showcases how facts should be connected with the other facts to be considered relevant. Logical Reasoning:Relevancy is determined on the basis of deductive logic and how one factor influences another. Exceptions to Relevancy of facts All logically relevant facts are not legally relevant. Section 3 of The Bharatiya ‘Sakshya Adhiniyam,2023(BNS) restricts the admissibility to only those facts that are expressly declared relevant by law. Hence, facts that might seem relevant logically but are not legally relevant are not admitted in court. Examples When a person is accused of theft, any evidence that they were seen near the crime scene will be considered relevant. Any statements showing a person’s motive to commit the crime will also fall under relevant facts. reasoning.It relates to the permissibility of the evidence to prove a particular fact in any procebding. Section 141 of BSA says that evidence is admissible only if it is relevant and duly proved. Admissibility is concerned with the legal standards for evidence, including whether it follows procedural rules and legal requirements. Admissibility of fe is based on strict legal rules rather than logical Key Components of Admissibility of facts Legal Standards: It is governed by strict legal rules. Procedural Compliance: Evidence must strictly comply with legal procedures to be admitted, Proof Requirements: Relevant facts must be duly proved to be admissible. Exceptions to Admissibility to facts Certain evidence might be excluded even though they are relevant based on legal rules or procedural issues. For example,hearsay evidence might be relevant but not admissible. Examples. A testimony of a witness will be considered admissible if it directly relates to the case and is made under oath.authentication of documents and presenting properly to make it admissible as evidence. Evidentiary value of admissions ( Section 15 to 21 & 25) Section 16 Admission by party to proceeding or his agent. (1) Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorised by him to make them, are admissions. (2) Statements made by~ {i) parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that, character; or {ii) (a) persons who have any proprietary or pecuniary interest in the subject matter of the proceeding, and who make the statement in their character of persons so interested; or {b) persons from whom the parties to the suit have derived their interest in the subject matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statement Section 17 Admissions by persons whose position must be proved as against party to suit Statements made by persons whose position or liability, it is necessary to prove as against any party to the suit, are admissions, if such statements would be relevant as against such persons in relation to such position or liability in a suit brought by or against them, and if they are made whilst the person making them occupies such position or is subject to such liability Illustration Aundertakes to collect rents for B. B sues A for not collecting rent due from C to B. A denies that rent was due from C to B. A statement by C that he owed B rent is an admission, and is a relevant fact as against A, if A denies that C did owe rent to B. Section 18 Admissions by persons expressly referred to by party to suit. “ Lk € «“e ‘6 vvvvvvuvuvuveveeveuuveeoeeeeseeEeHOOHCRHOROES Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions Illustration The question is, whether a horse sold by A to B is sound. Assays to B-- "Go and ask C, C knows all about it". C's statement is an admission. Proof of admissions against persons making them, and by or on their behalf. Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases, namely: (1) an admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 26; (2) an admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or bedy, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable; (3) an admission may be proved by or on behalf of the person making it, ifit is relevant otherwise than as an admission. Wlustrations. (a) The question between A and B is, whether a certain deed is or is not forged A affirms that it is genuine, B that it is forged. A may prove a statement by B that the deed is genuine, and B may prove a statement by A that deed is forged; but A cannot prove a statement by himself that the deed is genuine, nor can B prove a statement by himself that the deed is forged. (b) A, the captain of a ship, is tried for casting her away. Evidence is given to show that the ship was taken out of her proper course. A produces a book kept by him in the ordinary course of his business showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statements, because they would be admissible between third parties, if he were dead, under clause (b) of section 26. Section 20 When oral admissions as to contents of documents are relevant.Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is ehtitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question Section 21 Admi civil cases when relevan' In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given. Explanation.—Nothing in this section shall be taken to exempt any advocate from giving evidence of any matter of which he may be compelled to give evidence under sub-sections (1) and (2) of section 132. Section 25 Admissions not conclusive proof, but may estop. Admissions are not conclusive proof of the matters admitted but they may operate as estoppels under the provisions hereinafter contained UNIT-IL Meaning, forms, relevancy and admissibility of confessions A confession can be used to establish the guilt of the accused. Admissions may be voluntary or involuntary, and they can be used to establish the truth of certain facts. To be admissible in court, a confession must be made voluntarily, without coercion, duress, or inducement. The word ‘confession’ is not defined under The Bharatiya Sakshya Adhiniyam,2023 ( BSA).Lord Atkin has defined confession in the case ‘ Pakala narayan swat Emperor’ under which the court held that a confession must either admit in terms of offense or at any rate substantially all the facts which constitute the offense.If a statement made by accused does not contain direct admission in terms of commission of offense, it will not be considered as a confession, ‘A confession can be understood like ,when someone admits that they have committed a crime. They will say, “Yes, | did it.”A confession can be used as. a piece of evidence in court to prove that someone is guilty of a crime . But for a confession to be valid and used in court, it must be made voluntarily without any pressure or deceit. “ Oi é € € € €oe eo Cee ow PUY EEUU EE YH HEHHEHEEHH HOH Hwy There are two types of confessions under BSA and they are :- Judicial Confession — Confessions made before Magistrate or in Court are presumed to be correct and true record and considered to be a substantive piece of evidence.Under judicial confession- the person to whom it is made need not be called as a witness. it can be relied as proof of guilt against the accused person if it appears to the court to be voluntary and true. conviction may be based on it. Extra Judicial Confession — Confession where the accused admits his guilt or crime to any person other than the Court or a Magistrate. Extra judicial confession can be proved by either- orally examining the person to whom Confession is made. if it’s in writing, by inspecting the document in which the confessions, recorded E by calling as witness the person before whom the extra judicial confession was made. it alone cannot be relied upon,it needs support of other supporting evidence. it is unsafe to base conviction upon it \ Key Components of Sections 22 to 24 of BSA Section 22: Confessions Made Under Pressure This section makes sure that confessions aren't made under someone who was scared, threatened, or promised something in return. If the court finds out that a confession was made by a person under pressure, it won't be considered as evidence. However, if the person later confesses where there was no pressure made over him, the court might accept it. Additionally, the confession doesn’t become irrelevant just because the person says that he was intoxicated , drunk or got tricked when they confessed, or they weren’t warned about their rights.(Earlier under Section 24,28 and 29 of IEA,1872) Section 23: Confessions to Police Officers Under this section any confession made directly to a police officer by an accused cannot be used in court against him. This is because there’s a higher risk that the confession might have been coerced by the police officer.But,if the confession is made in the presence of a Magistrate while the person is still in police custody, it can be considered and taken into account.Exception If the police officer finds a’ new evidence or there is a discovery of a new fact ,because of something the accused confessed, that part of the confession can be taken into consideration and used in a court (Earlier under Section 25-27 of 1EA,1872) Section 24: Confessions Involving Multiple People Under is this section where more than one person is involved in a trial for the same crime.lf one person confesses and that confession implicates others on trial with them,the court can use this confession as evidence against everyone involved in the trial for the same crime.Under this rule,when people are tried together, a confession by one can impact all those involved. Exceptions of Confession Voluntary Confession After removal of Pressure :If someone confesses freely after removal of pressure or threat, the confession can be taken into consideration. Confessions Despite Circumstances: A confession doesn’t become irrelevant just because the person was tricked, drunk, or was not properly warned about the consequences of it. . Discdvery of New fact: Ifa confession leads to the discovery of any new facts or evidence, that part of the confession can be taken into consideration. Examples A suspect confesses because he was threatened with harm by someone in authority. This confession will not be accepted in the court. But if the same person confesses again later, without any threat, the court will take into account his second confession.(section 22) Assuspect in police custody confesses where he hid the stolen goods, and the police then discovered those goods based on that confession. Even though the confession was made in police custody, the part that led to discovery of the stolen items can be used in court.(section 23) Aand B, are on trial together for a crime and A confesses- “B and | did the crime together,” it can be used as evidence against both A and B.(section 24) Dying declaration Section 26(a) of Bharatiya Sakshya Adhiniyam,2023 (BSA) talks about dying declaration .It’s a statement made by a person who is dead or resulted in the cause of his death or which resulted in his death due to any circumstances of transaction i.e in cases in which the person's death comes into question.Section 26(a) of BSA ,makes such statements relevant,whether thevesvsd dts vvvvvvuvovoveoveeeaeeooneds maker of the statement was or was not under the expectation of death at the time when it was made. The Dying Declaration under Bharatiya Sakshya Adhiniyam,2023 (BSA) is an exception to the rule of Hearsay Evidence due to necessity and is admissible .It is also called as ‘Necessity Rule or Nisi’ .Dying Declaration is indicated in the legal maxim, ‘Nemo moriturus praesumitur mentire’ which means no person will die with a lie on his lips. Under this section, following are the essentials:~ Statement of a person who is dead Statement may be verbal written or by gestures Should relate to cause of death or circumstances of the transaction which resulted in death Expectation of death not necessary Statement relevant when cause of death is in question { Dying Declaration in BSA is considered as a substantive piece of evidence. Dying Declaration made under Section 26 of BSA is subject to control of Section 161 of BSA.It is admissible even if it made to a police officer. To decide the reliability of Dying Declaration, following guidelines needs to be considered, they are:- It should be true and voluntary, It can form a sole basis of conviction without any corroboration by independent evidence. It should not be tutored,prompted or imaginary. If suspicious , it should not be acted upon without proper corroboration. It Suffers from infirmity cannot form the basis of conviction. If More than one statement, one first in point of time must be preferred. From the point of view of the declarant the Dying Declaration in evidence must be complete.{f while making some statements he dies in the middle and the statement remains incomplete, it will not be relevant.(Earlier under Section 32 of Indian Evidence Act,1872) STATEMENT OF RELEVANT FACT BY PERSON WHO IS DEAD OR CANNOT BE FOUND IS RELEVANT (SECTION 26 OF BSA) Key Components (a)Cause of Death -Statement of a person about the cause or circumstances of his death is considered relevant where question arises regarding his death cause, even if they didn’t expect to die when making the statement. (b)Ordinary Course of Business -Statements made by a person in the regular course of business activities are considered relevant. Like,entries of businessrecords, acknowledgments of receiving money or goods, or use of documents for business transactions. { Against Personal Interest — Making a statement by a person that goes against their financial or property interests, or could expose them to criminal prosecution, such statement is considered relevant. (d)Public Rights or Customs ~ Giving an opinion on public rights, customs, or matters of general interest, which is made before any dispute which arose, is relevant. (e)Family Relationships - Any Statements about family relationships like blood, marriage, or adoption are treated relevant if that person had special knowledge regarding these relations and made them before any dispute arose. (f)Family Documents -Any Statements about family relationships found in wills, deeds, family pedigrees, or inscriptions or family portraits are considered relevant if made before any dispute arose. (g)Legal Documents -Statements made relating to any legal documents like deeds or wills that relate to a transaction in question are treated relevant. (h)ICollective Statements - Statements made by a group of people expressing feelings or impressions on any matter, is relevant. Exceptions Under specific legal conditions only these statements are considered relevant. If the person is alive and available, the statement might not be taken into consideration and will not be admitted. The law strictly limits their use in situations where the person is genuinely not available. Examples 1f B murdered A. A made a statement about his murder before dying, his statement would be relevant in finding the cause of A’s death.(Cause of Death) Assurgeon who died,had a diary that included an entry about delivery of a baby ona particular date. This entry could be relevant in finding the birth date of that baby.(Business Records) Aperson who died left a letter which acknowledges a receipt of rent for a property. This letter is relevant in proving whether rent was paid or not.(Financial Interests) A dead village headman’s statement regarding a road that it is public could be relevant in finding out the roads legal status.(Public Rights) Aletter from a father who died announcing the birth of his child on a particular date is relevant in finding out he child’s birth date.(Family Relationships) Section 26 b to 26h a ow ee8 8 S 8 > 3 3 3 B 3S > ) > » » » » > » >» » » » Statements by persons who cannot be called as witnesses Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. Section 26 b to 26 h Statements, written or verbal, of relevant facts made bya person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases, namely:— (a) when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether-the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question; {b) when the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document. used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him; (c) when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages; (d) when the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen; (ec) when the statement relates to the existence of any relationship by blood, ‘marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means ofknowledge, and when the statement was made before the question in dispute was raised; (f) when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised; (g) when the statement is contained in any deed, will or other document which relates to any such transaction as is specified in clause (a) of section 11; (h) when the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question. Illustrations. (a) The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the course of which she was raped. The question is whether she was raped by B; or the question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts. (b) The question is as to the date of A’s birth. An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that, on a given day he attended A’s mother and delivered her of a son, is a relevant fact. (c) The question is, whether A was in Nagpur on a given day. A statement in the diary of a deceased solicitor, regularly kept in the course of business, that on a given day the solicitor attended A at a place mentioned, in Nagpur, for the purpose of conferring with him upon specified business, is a relevant fact. (d) The question is, whether a ship sailed from Mumbai harbour on a given day. A letter written by a deceased member of a merchant's firm by which she was chartered to their correspondents in Chennai, to whom the cargo was consigned, stating that the ship sailed on a given day from Mumbai port, is a relevant fact. dec ees es ss ss ke és ke mw . tkoeceereovovecees 07008066868 (e) The question is, whether rent was paid to A for certain land. A letter from W's deceased agent to A, saying that he had received the rent on A’s account and held it at A’s orders is a relevant fact. (f) The question is, whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime is relevant. (g) The question is, whether A, a person who cannot be found, wrote a letter ona certain day. The fact that a letter written by him is dated on that day is relevant. (h) The question is, what was the cause of the wreck of a ship. A protest made by the captain, whose attendance cannot be procured, is a relevant fact Statement ander special circumstances Section 28 ~ 33 Section 28 Entries in books of account when relevant. Entries in the books of account, including those maintained in an electronic form, regularly kept in the course of business are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability. Mlustration A sues B for one thousand rupees, and shows entries in his account books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient, without other evidence, to prove the debt. Section 29 Relevancy of entry in public record or an electronic record made in performance of duty An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record or an electronic record, is kept, is itself a relevant fact. Section 30 Relevancy of statements in maps, charts and plan: Statements of facts in issue or relevant facts, made in published maps or charts generally offered for public sale, or in maps or plans made under the authorityof the Central Government or any State Government, as to matters usually represented or stated in such maps, charts or plans, are themselves relevant facts Section 31 Relevancy of statement as to fact of public nature contained in certain Acts or notifications When the Court has to form an opinion as to the existence of any fact of a public nature, any statement of it, made in a recital contained in any Central Act or State Act or in a Central Government or State Government notification appearing in the respective Official Gazette or in any printed paper or in electronic or digital form purporting to be such Gazette, is a relevant fact. Section 32 Relevancy of statements as to any law contained in law books including electronic or digital form. When the Court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published including in electronic or digital form under the authority of the Government of such country and to contain any such law, and any report of a ruling of the Courts of such country contained in a book including in electronic or digital form purporting to be a report of such rulings, is relevant. Section 33 What evidence to be given when stathment forms part of a conversation, document, electronic record, book or series of letters or papers. When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made. Relevance of judgements- general principles- Exceptions (Section 34 to 38) Section 34 Previous judgments relevant to bar a second suit or trial. The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when Gcgeé &€é G68 Eee cg: Ge é&,ee6HOe ee PIII IHS III KTS VI HHVFBVYHHOHeSHBEH the question is whether such Court ought to take cognizance of such suit or to hold such trial. Section 35 Relevancy of certain judgments in probate, etc., jurisdiction. (1) A final judgment, order or decree of a competent Court or Tribunal, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. (2) Such judgment, order or decree is conclusive proof that-- (i) any legal character, which it confers accrued at the time when such judgment, order or decree came into operation; (ii) any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person; (iii) any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and (iv) anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property. Section 36 Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 35 Judgments, orders or decrees other than those mentioned in section 35 are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state illustration. Assues B for trespass on his land. B alleges the existence of a public right of way over the land, which A denies. The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists.Section 37 Judgments, etc., other than those mentioned in sections 34, 35 and 36 when relevant. Judgments or orders or decrees, other than those mentioned in sections 34, 35 and 36, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Adhiniyam. Illustrations. (a) A and B separately sue C for a libel which reflects upon each of them. Cin each case says that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither. A obtains a decree against C for damages on the ground that C failed to make out his justification, The fact is irrelevant as between B and C. (b) A prosecutes B for stealing a cow from him. B is convicted. A afterwards sues C for the cow, which B had sold to him before his conviction. As between Aand C, the judgment against B is irrelevant. (c) A has obtained a decree for the possession of land against B. C, B's son, murders A in consequence. The existence of the judgment is relevant, as showing motive for a crime. Section 38_Fraud or collusionjin obtaining judgment, or incompetency of Court, may be proved Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 34, 35 or 36, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion. Expert testimony: General principle ( Section 39 to 45) Section 39 Opinions of experts. (1) When the Court has to form an opinion upon a point of foreign law or of science or art, or any other field, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or any other field, or in questions as to identity of handwriting or finger impressions are relevant facts and such persons are called experts. Mlustrations. é ‘enn mee ce hm mt th mm ee ke ek kes(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant. ne -e 16 e (a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed | to have died, are relevant. e (b) The question is, whether A, at the time of doing a certain act, was, by a reason of unsoundness of mind, incapable of knowing the nature of the act, or oe that he was doing what was either wrong or contrary to law. The opinions of ae) experts upon the question whether the symptoms exhibited by A commonly “ show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or 8 of knowing that what they do is either wrong or contrary to law, are relevant, (2) When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000 (21 of 2000), is a relevant fact. Explanation.—-For the purposes of this sub-section, an Exa{niner of Electronic Evidence shall be an expert. Section 40 Facts bearing upon opinions of experts. Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. Mlustrations. (a) The question is, whether A was poisoned by a certain poison. The fact that other persons, who were poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the symptoms of that poison, is relevant. (b) The question is, whether an obstruction to a harbour is caused by a certain sea-wall. The fact that other harbours similarly situated in other respects, but where there were no such sea-walls, began to be obstructed at about the same time, is relevant. Section 41 Opinion as to handwriting and signature, when relevant. eS S S Ss . B BS B . . . 2 > » > ,v » > > >, ° > °°(1) When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. Explanation.--A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. Mlustration The question is, whether a given letter is in the handwriting of A, a merchant in Itanagar. B is a merchant in Bengaluru, who has written letters addréssed to A and received letters purporting to be written by him. C, is B's clerk whose duty it was to examine and file B's correspondence. D is B's broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of advising him thereon. The opinions of B, C and D on the question whether the letter is in the handwriting of A are relevant, though neither B, C nor D ever saw A write. (2) When the Court has to form an opinion as to the electronic signature of any person, the offinion of the Certifying Authority which has issued the Electronic Signature Certificate is a relevant fact. Section 42 Opinion as to existence of general custom or right, when relevant. When the Court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed, are relevant Explanation.--The expression “general custom or right” includes customs or rights common to any considerable class of persons. Illustration. The right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section Section 43 Opinion as to usages, tenets, etc., when relevant. When the Court has to form an opinion as to— {i) the usages and tenets of any body of men or family;73329 @®eoe {ii) the constitution and governance of any religious or charitable foundation; or Cr) (iii) the meaning of words or terms used in particular districts or by particular classes of people, the opinions of persons having special means of knowledge thereon, are relevant facts. Section 44 Opinion on relationship, when relevant. When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Divorce Act, 1869 (4 of 1869), or in prosecution under sections 82 and 84 of the Bharatiya Nyaya Sanhita, 2023. Mustratior (a) The question is, whether A and B were married. The fact that they were usually received and treated by their friends as husband and wife, is relevant. (b) The question is, whether A was the fegitimate son of B. The fact that A was always treated as such by members of the family, is relevant. Section 45 Grounds of opinion, when relevant. Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant. Illustrations. An expert may give an account of experiments performed by him for the purpose of forming his opinion. Who is a expert? Types of expert evidence- Examiner of electronic evidence. An expert is a person with high knowledge and skill in a particular field of study, a person who has earned specialized knowledge and skill in that particular field of study. Evidence is information or opinion given by any person that proves the allegation to be true or not to be true. So expert evidence is information or opinion given by an expert in any field that person is specialized in, which comes out to be evidence in any matter. In field of law, expert witness is a person whose opinion is accepted by judge relating to any fact or SUSE VEVIVETTSEUTOVYUEOHOCOHOOCSHSevidence. An expert witness giving an opinion should be only on those matters in which that witness has specialized skills. This opinion given by expert witness is called expert opinion and if any evidence delivered by expert is called expert evidence. Expert evidence is applied to both civil cases and criminal cases. There are various types of expert evidence, and many more new methods and mechanisms are being developed and applied everyday with the continuous advancement in science and technology. The currently available expert evidences are divided into the following type: Medical Evidence- This type of expert evidence is given by a medical practitioner and it is conducted in a medical laboratory. These are further subdivided into the following types- . Cause of Death in cases alleged to be due to physical violence; . Cause of Death in cases alleged to be due to causes other than physical violence; . Whether Death was accidental, suicidal or homicidal; |. To prove Legal Insanity; . In cases of Sexual Offences; . To determine age; . In disputed Paternity cases; and . Miscellaneous matters. . Non-Medical Evidence- These are the expert evidences other than medical in nature. These are further sub-divided into- . Fingerprints; . Footprints; . Handwriting; |. Typewriting; . Forensic Ballistics; | . Narco-analysis; - Polygraph Test; ands > > 2 SVOKDHECHOKSHHOOKLHOHKESHOHHS 8. Brain Mapping. These are just some of the methods that are currently practiced in. the investigation process in India. Many new methods and techniques are being developed and will soon be in use for the purpose of investigation, but in each method it must be ensured that the rights of the individual are not hampered In cases where the rights of the accused are affected, the constitutionality of the evidence comes into question, which is further discussed in the next section of this research paper. Section 45 A Opinion of Examiner of Electronic Evidencé When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000 (21 of 2000), is a relevant fact. Explanation.-- For the purposes of this section, an Examiner of Electronic Evidence shall be an expert UNIT-IIt Character evidence + Relevance in civil and criminal cases ( Section 46 to 50) Evidence related to character means the use of information about a person’s character traits like honesty, violence, trustworthiness, etc.,to support or deny claims about their behavior in a specific circumstance. For example, evidence that someone is dishonest generally might be used to support the idea that they are lying in a particular case. Relevancy of Character in Criminal Cases - Section 47 of BSA( Good Character Relevant) — In criminal cases, the character of the accused plays a very significant role in assessing their innocence or guilt. The accused has the right to present evidence of their good character, and even when determining the appropriate punishment for them, the general good character of the accused will be taken into account. (Earlier Section 53 of IEA) Section 48 of BSA (Evidence of Character or Previous Sexual Experience, {rrelevant)- The Criminal Law (Amendment) Act of 2013 introduced this section to offer protection to victims of sexual offenses when there are doubts about their consent. The purpose of this section is to protect thevictims from facing harassment during the trial process. IEA) «Section 49 of BSA( Bad Character,Not Relevant)-In criminal proceedings, the negative character of an accused individual holds no relevance. This is because the court’s focus is on the trial itself rather than the individual, as a person with a questionable character might still have a justifiable case. (Earlier Section S4 of IEA). (Earlier Section 3A of Exceptions relating to Section 49 are — «When the accused has presented evidence demonstrating their good character. Where the bad character of the accused itself is a fact in issue.[Explanation 1 of Section 49] «Previous conviction is relevant as evidence of bad character. [Explanation 2 of Section 49] Relevancy of Character in Civil Cases- = Section 46 of BSA (In Civil Cases,Character to be Irrelevant absolutely} In civil cases, the standard practice is that evidence related to the character of any involved individual is not permissible to draw conclusions about their behavior. (Earlier Section 52 of IEA). i Exception to this general rule of Section 46 are- + When the character is itself a fact in issue. « Where character is otherwise relevant. «When character affects damages-Section 50 of BSAintroduces an exception to the general rule stated in Section 46. It allows for the consideration of the plaintiff's character, whether positive or negative, when determining the awarded damages amount. (Earlier Section 55 of IEA) Exceptions «Direct Relevance:if a character of someone is a main issue in the case (like defamation), then it may be directly relevant. + Previous Convictions: previous convictions can be considered as evidence of bad character in criminal cases, , but only under specific situations ,such as when good character has already been raised Examples 1 + Civil Case:in a case for breach of contract, the fact that one party is considered 1 to be unreliable does not prove they failed to meet the terms of the contract .