Sem V Law of Evidence
Bhartiya Sakshya Adhiniyam, 2023
Syllabus (2025)
Unit-1
- The main features of Bhartiya Sakshya Adhiniyam act
- The fundamental principles of law of evidence
- Definition
- Facts - relevant facts / facts in issue
- Evidence:
- Oral & documentary
- direct
- indirect
- primary
- secondary
- hearsay
- Presumptions
- proving, not proving, and disproving
- Relevance of facts
- res estate
- problems of relevancy of otherwise irrelevant facts
- facts concerning bodies and mental state
- evidence of common intention relating to conspiracy
- admission and confession
- general principles concerning admission
- differences between admission and confession
- problems of non-admissibility of confessions caused by any inducement, threat, or promise
- dying declarations
- justification for relevance on dying declarations
- judicial standards for appreciation of evidentiary value of dying declaration
- relevance of judgements
- expert testimony
- oral documentary evidence
- written examination and cross examination
Previous Year Questions DAVV
- What do you understand by facts? Discuss different types of facts and distinguish between them? [March 2025 DAVV]
- What do you mean by estoppel? Explain various kinds of estoppel? with the help of decided case laws? Doctrine of Estoppel. Who does it apply to? Difference between estoppel and res judicata? In what ways does it influence bringing of evidence before the court?
- What is privileged communication? Various types of privileged communication?
Examples? Can a husband or wife be compelled to testify in a case in which either of them is a party, give reasons? - What is a dying declaration? How is it proved? Principles on which dying declaration are admitted in evidence? circumstances under which a dying declaration is admissible in court? state the law relating to dying declrataion in india?
- What is meant by Expert opinion? Whether opinions of an expert that are given in a case, binding in the court? Who is an expert? When and in what cases the opinion of an expert is relevant? Explain with illustrations and decided case laws. What are the matters for which an expert can be relied upon in a case in a court?
When is opinion of third person relevant? What is expert evidence? - What do you mean by Burden Of proof? The burden of proof lies on that person who would fail if no evidence at all were given on either side. Explain the statement. General principles of burden of proof in civil and criminal cases? rules determining burden of proof in a suit or proceeding? Discuss law relating to burden of proof and especially in cases of dowry death and abetment of suicide by a married woman. decided cases laws.
- What do you understand by evidence? Discuss various types of evidence?
Differentiate between each of them. Under what circumstances can secondary evidence be given in documents? Is an affidavit included as an evidence?
Hearsay is no evidence at all explain. Which materials cant be considered as evidence? Explain application of Bhartiya Sakshya Adhiniyam - General principals of examination. Various kinds of examination. Rules and procedure for various types of cross examination. what is examination in chief cross examination and re examination? what questions can be put in each type?
- all confessions are evidence but all evidence is not confession.
Q. What do you understand by Facts? Discuss different types of facts and distinguish between them.
Introduction
In every judicial proceeding, the Court has to decide whether a certain fact exists or not. The Bhartiya Sakshya Adhiniyam, 2023 (BSA), replacing the Indian Evidence Act, 1872, provides a comprehensive definition of “fact” and lays down rules about which facts may be proved in court. Since evidence can only be led to prove facts, their classification into facts-in-issue, relevant facts, evidentiary facts, psychological facts, etc. is central to the administration of justice.
Meaning of Fact under BSA, 2023
According to Section 2(1)(f), BSA 2023:
Fact means and includes:
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External/physical facts: Anything, state of things, or relation of things, capable of being perceived by the senses.
Internal/psychological facts: Any mental condition of which any person is conscious.
Thus, facts may be physical (external) or psychological (internal).
- Bhogilal Chunilal Pandya v. State of Bombay (1959): facts include physical objects and mental conditions; courts infer mind from conduct. (1959 SCR 282)
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Decision: The Supreme Court held that “facts” include not only physical acts but also mental conditions such as good faith or intention.
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Significance: Mental states are provable “facts”; they may be inferred from conduct and surrounding circumstances.
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- Hanumant Govind Nargundkar v. State of M.P. (1952): handwriting comparison and surrounding physical circumstances can be crucial facts. (AIR 1952 SC 343)
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Decision: The Supreme Court upheld conviction where handwriting comparison, physical circumstances and circumstantial evidence, taken together, formed a coherent chain proving the offence. The Court emphasised that physical facts (documents, objects, injuries, etc.) and their proper interlinking may be sufficient to establish both external events and to infer internal states.
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Significance / Implication: Reinforces that the definition of “fact” includes physical circumstances and that courts may rely on material, scientific and circumstantial facts to infer mental states. It demonstrates how external facts (handwriting samples, physical evidence) operate as facts under S.2(1)(f) and help prove psychological facts (intent, knowledge) by inference.
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3. Types and Classifications of Facts
A. Facts-in-Issue [S.2(1)(g)]
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Meaning: Facts directly in dispute, determination of which gives rise to a right or liability.
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They form the foundation of the case and appear as the issues or charges framed by the Court.
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Example: In a murder case, “whether A caused B’s death” is a fact-in-issue.
Meaning: Facts directly in dispute, determination of which gives rise to a right or liability.
They form the foundation of the case and appear as the issues or charges framed by the Court.
Example: In a murder case, “whether A caused B’s death” is a fact-in-issue.
Case: Queen-Empress v. Babulal (ILR 6 All 509, 1884)
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Decision: The Court held that the facts described in the charge (e.g., whether the accused caused injury) are the true “facts-in-issue”.
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Significance: Facts-in-issue are the ultimate facts whose proof determines guilt or liability.
B. Relevant Facts [S.2(1)(k) read with S.3, BSA 2023]
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Meaning: Facts not directly in issue but connected with the facts-in-issue in any legally recognised way (same transaction, motive, preparation, conduct, etc.).
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They make the existence or non-existence of facts-in-issue more probable.
Meaning: Facts not directly in issue but connected with the facts-in-issue in any legally recognised way (same transaction, motive, preparation, conduct, etc.).
They make the existence or non-existence of facts-in-issue more probable.
Case: Pakala Narayana Swami v. Emperor (AIR 1939 PC 47)
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Decision: A letter and statement by the deceased (“I am going to meet the accused to collect money”) were held relevant, though not facts-in-issue, because they formed part of the transaction leading to his murder.
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Significance: Established the distinction — facts-in-issue are the murder itself; relevant facts are surrounding circumstances explaining or connecting the event.
Case: State of Maharashtra v. Damu (2000 6 SCC 269)
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Decision: The Supreme Court held that conduct, recovery of articles, and surrounding circumstances—though not in issue directly—were relevant facts linking the accused to the offence.
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Significance: Clarified that circumstantial evidence consists of relevant facts supporting or rebutting facts-in-issue.
C. Physical / External Facts
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Meaning: Tangible, perceivable facts — objects, persons, events, places — capable of direct sensory perception.
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Examples: blood-stained clothes, footprints, forged document, weapon used.
Meaning: Tangible, perceivable facts — objects, persons, events, places — capable of direct sensory perception.
Examples: blood-stained clothes, footprints, forged document, weapon used.
Case: Hanumant Govind Nargundkar v. State of M.P. (AIR 1952 SC 343)
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Decision: Conviction for forgery and murder was upheld on the basis of handwriting comparison and surrounding physical evidence forming a complete chain.
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Significance: Demonstrated that physical circumstances are strong “facts” when proved and linked logically; also reinforced the doctrine of circumstantial evidence.
Case: Pulukuri Kotayya v. King Emperor (AIR 1947 PC 67)
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Decision: Only the part of the accused’s statement that distinctly related to discovery of a knife was admissible; the rest was barred as a confession to police.
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Significance: The discovery of a material object is an evidentiary fact — a physical circumstance connecting accused with fact-in-issue (murder).
D. Psychological / Internal Facts
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Meaning: States of mind — intention, knowledge, belief, good faith, ill-will, negligence.
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These cannot be seen but are proved by conduct, declarations, and surrounding facts.
Meaning: States of mind — intention, knowledge, belief, good faith, ill-will, negligence.
These cannot be seen but are proved by conduct, declarations, and surrounding facts.
Case: Virsa Singh v. State of Punjab (AIR 1958 SC 465)
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Decision: The Court held that intention to cause death can be inferred from the nature of injury and weapon used; mental state proved by external acts.
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Significance: Shows how courts infer internal (psychological) facts from external evidence.
Case: State of Maharashtra v. Mayer Hans George (AIR 1965 SC 722)
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Decision: A German national importing currency claimed ignorance of new notification; the Court held that ignorance of law is no excuse.
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Significance: Recognised “knowledge” as a mental fact relevant to guilt, but distinguished knowledge of fact from knowledge of law.
Case: Krishna Kumar Malik v. State of Haryana (2011 7 SCC 130)
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Decision: In a rape case, intention and guilt were inferred from consistent circumstantial and medical evidence.
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Significance: Reaffirmed that psychological facts like intention or consent are inferred from conduct and corroborative physical facts.
E. Evidentiary Facts
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Meaning: Facts that prove or disprove other facts (especially the facts-in-issue).
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They are links in the chain of reasoning leading to the ultimate conclusion.
Meaning: Facts that prove or disprove other facts (especially the facts-in-issue).
They are links in the chain of reasoning leading to the ultimate conclusion.
Case: Pulukuri Kotayya v. King Emperor (AIR 1947 PC 67)
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Decision: (as above) Only the portion leading to discovery of knife admissible.
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Significance: Illustrates that evidentiary facts are partial truths establishing connection between accused and principal event.
Case: Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622)
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Decision: Laid down five golden principles of circumstantial evidence—each link (evidentiary fact) must be fully proved and form an unbroken chain pointing to guilt.
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Significance: Demonstrated the role of evidentiary facts in constructing judicial proof from multiple circumstances.
F. Collateral Facts
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Meaning: Incidental or secondary facts used mainly to test credibility or admissibility, not directly affecting the issue.
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Examples: prior inconsistent statements, witness bias, prior conviction.
Meaning: Incidental or secondary facts used mainly to test credibility or admissibility, not directly affecting the issue.
Examples: prior inconsistent statements, witness bias, prior conviction.
Case: Rameshwar v. State of Rajasthan (AIR 1952 SC 54)
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Decision: The Court held that previous consistent statements of a child witness were collateral facts admissible for corroboration under Section 157 (old Act).
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Significance: Collateral facts strengthen or weaken witness credibility.
Case: Satpal Singh v. State of Haryana (2010 8 SCC 714)
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Decision: Corroborative evidence, though not mandatory, can be used to test credibility of victim in sexual-offence cases.
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Significance: Reinforces that collateral facts serve as checks on reliability, ensuring fairness.
G. Proved / Not Proved / Disproved [S.2(1)(i–j), BSA 2023]
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Proved: Court believes a fact exists or finds it so probable that a prudent person would act upon it.
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Disproved: Court believes the fact does not exist or finds its non-existence so probable that a prudent person would act on that basis.
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Not Proved: When a fact is neither proved nor disproved.
Proved: Court believes a fact exists or finds it so probable that a prudent person would act upon it.
Disproved: Court believes the fact does not exist or finds its non-existence so probable that a prudent person would act on that basis.
Not Proved: When a fact is neither proved nor disproved.
Case: Kali Ram v. State of Himachal Pradesh (AIR 1973 SC 2773)
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Decision: If two views are possible, the one favourable to the accused must be adopted; burden of proof lies on prosecution.
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Significance: Demonstrates how “not proved” facts result in benefit of doubt.
Case: Sharad Birdhichand Sarda (1984)
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Decision: Unless all links are proved beyond reasonable doubt, the accused cannot be convicted.
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Significance: Clarifies that suspicion or partial proof is not “proof” in law.
4. Distinction Between Facts-in-Issue and Relevant Facts
Basis Facts-in-Issue Relevant Facts Meaning Principal facts directly in dispute determining rights/liabilities. Connected facts that make existence/non-existence of facts-in-issue probable. Example Whether A killed B. Motive, conduct, recovery of weapon, absconding, etc. Source Issues or charges framed by court. Sections 4–14, BSA 2023 (relevancy rules). Cases Queen-Empress v. Babulal Pakala Narayana Swami v. Emperor, Damu. Role Ultimate facts to be proved. Supporting circumstances aiding proof.
| Basis | Facts-in-Issue | Relevant Facts |
|---|---|---|
| Meaning | Principal facts directly in dispute determining rights/liabilities. | Connected facts that make existence/non-existence of facts-in-issue probable. |
| Example | Whether A killed B. | Motive, conduct, recovery of weapon, absconding, etc. |
| Source | Issues or charges framed by court. | Sections 4–14, BSA 2023 (relevancy rules). |
| Cases | Queen-Empress v. Babulal | Pakala Narayana Swami v. Emperor, Damu. |
| Role | Ultimate facts to be proved. | Supporting circumstances aiding proof. |
5. Supporting Doctrines of Relevancy (Sections 4–14, Bhartiya Sakshya Adhiniyam, 2023)
⚖️ Only those facts that are legally “relevant” may be proved in court.
The Bhartiya Sakshya Adhiniyam (BSA) lays down specific connections between facts-in-issue and other facts that make them “relevant.”
These connections are often called the doctrines of relevancy.
⚖️ Only those facts that are legally “relevant” may be proved in court.
The Bhartiya Sakshya Adhiniyam (BSA) lays down specific connections between facts-in-issue and other facts that make them “relevant.”
These connections are often called the doctrines of relevancy.
Below is a breakdown of the key doctrines with examples and case references 👇
(1) Doctrine of Res Gestae / Same Transaction – Section 4, BSA 2023
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Meaning:
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Facts forming part of the same transaction as the fact-in-issue are relevant.
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It covers spontaneous statements, immediate acts, and connected events forming one continuous narrative.
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Rationale: Such statements or acts are contemporaneous and leave little room for fabrication.
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Examples:
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A shouts “B is stabbing me!” just before dying → admissible as part of same transaction.
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Witness sees A running from the scene seconds after the crime.
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Case – Gentela Vijayavardhan Rao v. State of A.P. (1996 SCC 289)
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Decision: The Supreme Court held that statements made immediately after a bus bombing, before there was time to fabricate, formed part of the same transaction.
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Significance: Established that spontaneity and continuity are key to Res Gestae admissibility.
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Case – Ratten v. The Queen (1972 AC 378, PC)
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Decision: A telephone call made by the deceased moments before being shot (“Get me the police”) was admissible as part of the same transaction.
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Significance: Illustrates the doctrine of contemporaneity — spontaneous declarations are relevant as facts explaining the main event.
Meaning:
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Facts forming part of the same transaction as the fact-in-issue are relevant.
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It covers spontaneous statements, immediate acts, and connected events forming one continuous narrative.
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Rationale: Such statements or acts are contemporaneous and leave little room for fabrication.
Examples:
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A shouts “B is stabbing me!” just before dying → admissible as part of same transaction.
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Witness sees A running from the scene seconds after the crime.
Case – Gentela Vijayavardhan Rao v. State of A.P. (1996 SCC 289)
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Decision: The Supreme Court held that statements made immediately after a bus bombing, before there was time to fabricate, formed part of the same transaction.
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Significance: Established that spontaneity and continuity are key to Res Gestae admissibility.
Case – Ratten v. The Queen (1972 AC 378, PC)
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Decision: A telephone call made by the deceased moments before being shot (“Get me the police”) was admissible as part of the same transaction.
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Significance: Illustrates the doctrine of contemporaneity — spontaneous declarations are relevant as facts explaining the main event.
(2) Cause, Occasion, or Effect – Section 5, BSA 2023
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Meaning:
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Facts that constitute the cause, occasion, or effect of facts-in-issue are relevant.
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This allows the Court to understand the entire sequence of events.
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Example:
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Prior threats (cause) or medical consequences (effect) of an assault.
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Case – State of Punjab v. Bhajan Singh (2011 SCC 655)
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Decision: Threats made by accused before murder and injuries found later were both relevant as cause and effect.
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Significance: Cause-and-effect facts give the Court a full narrative of the transaction.
Meaning:
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Facts that constitute the cause, occasion, or effect of facts-in-issue are relevant.
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This allows the Court to understand the entire sequence of events.
Example:
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Prior threats (cause) or medical consequences (effect) of an assault.
Case – State of Punjab v. Bhajan Singh (2011 SCC 655)
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Decision: Threats made by accused before murder and injuries found later were both relevant as cause and effect.
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Significance: Cause-and-effect facts give the Court a full narrative of the transaction.
(3) Motive, Preparation, and Conduct – Section 6, BSA 2023
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Meaning:
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Facts showing motive, preparation, or subsequent conduct are relevant since they reveal intention or probability of guilt.
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Examples:
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Buying poison before murder (preparation).
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Absconding after crime (conduct).
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Case – Matru v. State of U.P. (AIR 1971 SC 1050)
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Decision: Court held that absconding may indicate guilty mind but is not conclusive proof of guilt.
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Significance: Conduct is a relevant fact, but not by itself sufficient to convict.
Meaning:
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Facts showing motive, preparation, or subsequent conduct are relevant since they reveal intention or probability of guilt.
Examples:
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Buying poison before murder (preparation).
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Absconding after crime (conduct).
Case – Matru v. State of U.P. (AIR 1971 SC 1050)
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Decision: Court held that absconding may indicate guilty mind but is not conclusive proof of guilt.
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Significance: Conduct is a relevant fact, but not by itself sufficient to convict.
(4) Conspiracy and Common Design – Section 8, BSA 2023
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Meaning:
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When several persons conspire, acts and statements of each made in reference to the common intention are relevant against all.
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Basis: Agency principle — each conspirator is an agent of others for the common object.
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Case – State (NCT of Delhi) v. Navjot Sandhu (Parliament Attack Case, 2005 11 SCC 600)
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Decision: Court admitted phone records and coordinated actions of accused as relevant under conspiracy principle.
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Significance: Strengthened the rule that interlinked actions/statements within a conspiracy are relevant even if made outside presence of co-accused.
Meaning:
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When several persons conspire, acts and statements of each made in reference to the common intention are relevant against all.
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Basis: Agency principle — each conspirator is an agent of others for the common object.
Case – State (NCT of Delhi) v. Navjot Sandhu (Parliament Attack Case, 2005 11 SCC 600)
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Decision: Court admitted phone records and coordinated actions of accused as relevant under conspiracy principle.
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Significance: Strengthened the rule that interlinked actions/statements within a conspiracy are relevant even if made outside presence of co-accused.
(5) Facts Necessary to Explain or Introduce – Section 7, BSA 2023
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Meaning:
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Facts explaining the circumstances of the principal fact or forming introductory parts of a series of transactions are relevant.
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Example:
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Prior quarrel explaining a later assault.
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Case – Sukhar v. State of U.P. (1999 9 SCC 507)
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Decision: Held that statements explaining the setting of a crime were admissible to give the Court a coherent picture.
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Significance: Prevents the Court from viewing facts in isolation.
Meaning:
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Facts explaining the circumstances of the principal fact or forming introductory parts of a series of transactions are relevant.
Example:
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Prior quarrel explaining a later assault.
Case – Sukhar v. State of U.P. (1999 9 SCC 507)
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Decision: Held that statements explaining the setting of a crime were admissible to give the Court a coherent picture.
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Significance: Prevents the Court from viewing facts in isolation.
(6) Facts Showing Existence of Right or Custom – Section 11, BSA 2023
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Meaning:
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Frequent or habitual exercise of a right/custom is relevant to prove its existence.
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Case – Kanshi Ram v. Lachhman (AIR 1961 SC 905)
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Decision: Proof of long, uninterrupted exercise of a village path was accepted as evidence of customary right.
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Significance: Customary and habitual facts create probability of right’s existence.
Meaning:
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Frequent or habitual exercise of a right/custom is relevant to prove its existence.
Case – Kanshi Ram v. Lachhman (AIR 1961 SC 905)
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Decision: Proof of long, uninterrupted exercise of a village path was accepted as evidence of customary right.
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Significance: Customary and habitual facts create probability of right’s existence.
(7) State of Mind, Body, or Intention – Section 12, BSA 2023
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Meaning:
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Statements and circumstances showing a person’s mental or physical condition, intention, or knowledge are relevant.
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Case – Bhogilal Chunilal Pandya v. State of Bombay (1959)
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Decision: Mental states such as honesty or good faith fall within the definition of “fact.”
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Significance: Provides bridge between physical and psychological facts.
Meaning:
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Statements and circumstances showing a person’s mental or physical condition, intention, or knowledge are relevant.
Case – Bhogilal Chunilal Pandya v. State of Bombay (1959)
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Decision: Mental states such as honesty or good faith fall within the definition of “fact.”
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Significance: Provides bridge between physical and psychological facts.
(8) Course of Business / Habit – Section 14, BSA 2023
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Meaning:
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Facts showing a regular course of business, routine, or systematic habit are relevant.
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Example: Bank’s daily ledger entries to prove ordinary practice.
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Case – Shivaji Sahabrao Bobade v. State of Maharashtra (AIR 1973 SC 2622)
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Decision: Habitual conduct may establish probability of an act being done in the same manner.
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Significance: Recognises pattern and consistency as indicators of truth.
Meaning:
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Facts showing a regular course of business, routine, or systematic habit are relevant.
Example: Bank’s daily ledger entries to prove ordinary practice.
Case – Shivaji Sahabrao Bobade v. State of Maharashtra (AIR 1973 SC 2622)
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Decision: Habitual conduct may establish probability of an act being done in the same manner.
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Significance: Recognises pattern and consistency as indicators of truth.
6. Conclusion
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Facts are the DNA of evidence law.
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The Bhartiya Sakshya Adhiniyam, 2023 preserves the comprehensive structure of the old Evidence Act while clarifying definitions and gender-neutralising language.
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Core Insight:
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The Court deals only with facts-in-issue and relevant facts — all other information is immaterial.
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Facts-in-issue form the heart of the dispute; relevant facts are arteries supplying the proof.
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Judicial Lessons:
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Pakala Narayana Swami taught that surrounding circumstances can explain the main event.
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Hanumant Govind Nargundkar and Sharad Birdhichand Sarda show that each link-fact must be proved for a complete chain.
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Kali Ram reminds that doubt from unproved facts must benefit the accused.
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Doctrines of Relevancy under Ss. 4–14 are the guiding lights connecting disparate facts into a coherent narrative so that justice is anchored in truth, not speculation.
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Final Thought:
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Without facts there is no evidence, without evidence there is no proof, and without proof there is no justice — hence the entire edifice of criminal and civil adjudication rests upon the proper understanding, classification, and proof of facts.
Facts are the DNA of evidence law.
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The Bhartiya Sakshya Adhiniyam, 2023 preserves the comprehensive structure of the old Evidence Act while clarifying definitions and gender-neutralising language.
Core Insight:
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The Court deals only with facts-in-issue and relevant facts — all other information is immaterial.
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Facts-in-issue form the heart of the dispute; relevant facts are arteries supplying the proof.
Judicial Lessons:
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Pakala Narayana Swami taught that surrounding circumstances can explain the main event.
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Hanumant Govind Nargundkar and Sharad Birdhichand Sarda show that each link-fact must be proved for a complete chain.
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Kali Ram reminds that doubt from unproved facts must benefit the accused.
Doctrines of Relevancy under Ss. 4–14 are the guiding lights connecting disparate facts into a coherent narrative so that justice is anchored in truth, not speculation.
Final Thought:
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Without facts there is no evidence, without evidence there is no proof, and without proof there is no justice — hence the entire edifice of criminal and civil adjudication rests upon the proper understanding, classification, and proof of facts.
| Type of Fact | Meaning / Definition | Example | Leading Case Law (Decision + Significance) | Distinctive Features / Notes |
|---|---|---|---|---|
| 1️⃣ Facts-in-Issue (Sec. 2(1)(g)) | Principal facts directly in dispute, the proof or disproof of which decides the rights or liabilities of parties. They are the foundation of the case. | In a murder trial – whether A caused B’s death; whether A intended to kill B. | Queen-Empress v. Babulal (1884 ILR 6 All 509) • Decision: Facts stated in the charge are the real facts-in-issue. • Significance: These are the ultimate facts to be proved for conviction or acquittal. | • Form the core dispute. • Appear as issues/charges framed by court. • Must be proved directly. |
| 2️⃣ Relevant Facts (Sec. 2(1)(k) & Sec. 3) | Facts connected with facts-in-issue in any legally recognised way (same transaction, motive, conduct, etc.) which make the existence or non-existence of the fact-in-issue probable. | A buys poison before B’s death → motive & preparation (relevant). | Pakala Narayana Swami v. Emperor (1939 PC) • Decision: Deceased’s letter & statement before murder were relevant though not in issue. • Significance: Clarified difference between facts-in-issue and relevant facts. State of Maharashtra v. Damu (2000 6 SCC 269) • Circumstantial conduct & recoveries are relevant facts linking accused to crime. | • Indirect but legally connected. • Governed by Sections 4–14 (doctrines of relevancy). • Used to infer or corroborate main facts. |
| 3️⃣ Physical / External Facts | Facts perceivable by senses – tangible, visible, audible, etc. | Blood-stained clothes, broken lock, fingerprints, handwriting. | Hanumant Govind Nargundkar v. State of M.P. (1952 SC 343) • Decision: Conviction based on handwriting & circumstantial physical evidence. • Significance: Physical surroundings can conclusively prove guilt. Pulukuri Kotayya v. King Emperor (1947 PC) • Discovery of knife admissible as evidentiary fact. | • Objective & sensory in nature. • Proved through documents, experts, or witnesses. • Often basis for scientific & circumstantial evidence. |
| 4️⃣ Psychological / Internal Facts | Mental conditions such as intention, knowledge, belief, good faith, or ill-will that exist in the mind of a person. | A’s intention to kill B; B’s knowledge of forgery. | Virsa Singh v. State of Punjab (1958 SC) • Decision: Intention inferred from injury & weapon. • Significance: Intention = internal fact proved by external acts. State of Maharashtra v. Mayer Hans George (1965 SC) • Decision: Knowledge is a mental fact; ignorance of law no defence. • Significance: Mental elements are provable facts. Krishna Kumar Malik v. State of Haryana (2011 SC) • Intention deduced from surrounding circumstances. | • Subjective but inferred objectively. • Cannot be seen; must be inferred from behaviour or words. • Key in offences needing mens rea. |
| 5️⃣ Evidentiary Facts | Facts that prove or disprove other facts, especially facts-in-issue. They form the links in the evidentiary chain. | Recovery of weapon, alibi, fingerprints, motive, last-seen evidence. | Pulukuri Kotayya v. King Emperor (1947 PC) • Decision: Only portion leading to discovery admissible. • Significance: Discovery fact corroborates guilt. Sharad Birdhichand Sarda v. State of Maharashtra (1984 SC) • Decision: Each link (evidentiary fact) must be fully proved; suspicion ≠ proof. | • Serve as bridges between relevant facts & facts-in-issue. • Integral to circumstantial evidence. • Failure of one link breaks the chain. |
| 6️⃣ Collateral Facts | Incidental facts used to test credibility, bias, or competency of witnesses, not directly related to the issue. | Prior inconsistent statement of witness; previous conviction; bias. | Rameshwar v. State of Rajasthan (1952 SC) • Decision: Prior consistent statements of child witness relevant for corroboration. • Significance:* Collateral facts strengthen reliability. Satpal Singh v. State of Haryana (2010 SC) • Decision: Corroborative evidence aids credibility in sexual offences. | • Affect weight, not admissibility of evidence. • Used for corroboration or contradiction. • Not part of the main transaction. |
| 7️⃣ Proved / Not Proved / Disproved (Sec. 2(1)(i–j)) | Standards of judicial belief regarding a fact’s existence or non-existence. | “A killed B” is proved if evidence convinces a prudent person; not proved if uncertain; disproved if clearly false. | Kali Ram v. State of H.P. (1973 SC) • Decision: Benefit of doubt when fact not proved beyond reasonable doubt. • Significance:* Burden lies on prosecution. Sharad Birdhichand Sarda (1984 SC) • Decision: Chain of facts must be complete; otherwise fact only “not proved.” | • These determine evaluation of evidence. • ‘Not proved’ ⇒ doubt ⇒ acquittal. • Guides court’s mental satisfaction about facts. |
4. Key Distinctions (Quick Recap Table)
Basis of Difference Facts-in-Issue Relevant Facts Evidentiary Facts Collateral Facts Directness Directly determine rights/liabilities. Indirectly connected; increase probability. Prove or disprove another fact. Only affect credibility. Source in BSA Sec. 2(1)(g). Sec. 2(1)(k) + Ch. II (Ss. 4–14). Derived from relevancy principles. Judicially recognised practice. Examples Whether A killed B. A’s motive or preparation. Discovery of weapon. Witness bias or prior statement. Proof Needed Must be proved conclusively. Supportive proof suffices. Must fit coherently in chain. Merely assists evaluation.
| Basis of Difference | Facts-in-Issue | Relevant Facts | Evidentiary Facts | Collateral Facts |
|---|---|---|---|---|
| Directness | Directly determine rights/liabilities. | Indirectly connected; increase probability. | Prove or disprove another fact. | Only affect credibility. |
| Source in BSA | Sec. 2(1)(g). | Sec. 2(1)(k) + Ch. II (Ss. 4–14). | Derived from relevancy principles. | Judicially recognised practice. |
| Examples | Whether A killed B. | A’s motive or preparation. | Discovery of weapon. | Witness bias or prior statement. |
| Proof Needed | Must be proved conclusively. | Supportive proof suffices. | Must fit coherently in chain. | Merely assists evaluation. |
5. Supporting Case Law Overview (one-line recall)
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Queen-Empress v. Babulal → Facts-in-issue are those in the charge.
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Pakala Narayana Swami → Surrounding facts = relevant facts.
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Hanumant Govind Nargundkar → Physical facts prove guilt.
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Virsa Singh → Mental intention inferred from injury.
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Pulukuri Kotayya → Discovery as evidentiary fact.
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Rameshwar & Satpal Singh → Collateral facts for credibility.
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Kali Ram & Sharad Birdhichand → Standard of “proved” and benefit of doubt.
Queen-Empress v. Babulal → Facts-in-issue are those in the charge.
Pakala Narayana Swami → Surrounding facts = relevant facts.
Hanumant Govind Nargundkar → Physical facts prove guilt.
Virsa Singh → Mental intention inferred from injury.
Pulukuri Kotayya → Discovery as evidentiary fact.
Rameshwar & Satpal Singh → Collateral facts for credibility.
Kali Ram & Sharad Birdhichand → Standard of “proved” and benefit of doubt.
Relevant Sections (Bhartiya Sakshya Adhiniyam, 2023)
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Section 2(1)(f) → Definition of Fact.
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Section 2(1)(g) → Facts-in-Issue.
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Section 3 → Relevancy of facts.
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Section 2(1)(h)-(j) → Proved, Disproved, Not Proved.
Conclusion
The concept of facts is the cornerstone of evidence law. While facts-in-issue represent the direct questions for determination, relevant facts, evidentiary facts, psychological and collateral facts play a vital supporting role in establishing truth.
Judicial precedents—from Pakala Narayana Swami to Sharad Birdhichand Sarda—have elaborated how facts must be interpreted, classified, and proved. The Bhartiya Sakshya Adhiniyam, 2023 continues this structure with simplified language, ensuring that only facts supported by legal relevancy are allowed in courts.
Hence, without facts there can be no evidence, and without evidence there can be no justice.
Q. What do you mean by Estoppel? Explain various kinds of estoppel with the help of decided case laws. Discuss the Doctrine of Estoppel, its applicability, difference between Estoppel and Res Judicata, and its influence on evidence before the Court.
1. Introduction
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The Doctrine of Estoppel is a rule of equitable justice and common sense — it prevents a person from denying what he has once represented to be true, if another has relied upon that representation.
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It embodies the principle of honesty and consistency in conduct.
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The doctrine finds statutory expression in Section 121-123 of the Bhartiya Sakshya Adhiniyam, 2023 (BSA) (which corresponds to Section 115 of the Indian Evidence Act, 1872).
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Its foundation lies in equity, good conscience, and fair dealing — it is not a rule of substantive law but of evidence and conduct.
2. Definition and Meaning [Section 121, BSA 2023]
Section 121, Bhartiya Sakshya Adhiniyam, 2023:
When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any proceeding between himself and such person or his representative, to deny the truth of that thing.
→ In short:
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“A person cannot blow hot and cold at the same time.”
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Once you have made another person act on your representation, you are estopped from later denying it.
3. Essential Ingredients of Estoppel
| Element | Explanation |
|---|---|
| Representation or Conduct | One party must make a representation (by words, acts, or silence) to another. |
| Reliance | The other party must believe and act upon it. |
| Alteration of Position | The second party must suffer or change his position relying on the representation. |
| Good Faith | Estoppel operates only when the representation was made intentionally or negligently to induce belief. |
4. Kinds / Types of Estoppel (with Case Laws)
| Type | Meaning / Explanation | Example | Leading Case Law (Decision + Significance) |
|---|---|---|---|
| 1️⃣ Estoppel by Record (Res Judicata Type) | When a matter of fact or law has been decided by a competent court, neither party can later deny it in subsequent proceedings. | Once a civil court decides ownership of land, the same cannot be denied in a later suit between same parties. | Duchess of Kingston’s Case (1776) 2 Smith LC 644 • Decision: What has been judicially decided cannot be contradicted. • Significance: Laid foundation for estoppel by record, now akin to res judicata. |
| 2️⃣ Estoppel by Deed / Contract | When a person makes a formal admission in a document (like a deed or contract), he cannot later deny it against the other party. | A executes sale deed stating he owns property → later cannot deny ownership. | B.L. Sreedhar v. K.M. Munireddy (2003) 2 SCC 355 • Decision: Parties bound by clear admissions in documents executed by them. • Significance: Upholds sanctity of contractual representations. |
| 3️⃣ Estoppel by Conduct / Representation (General Estoppel) | When a person’s act or omission leads another to believe something and act on it, he is estopped from denying it. | A says to B “This land is mine; you can build on it” → A later can’t deny ownership to evict B. | Pickard v. Sears (1837) 6 Ad & E 469 • Decision: First case to formulate equitable estoppel by conduct. • Significance: Birth of the modern doctrine of estoppel. |
| 4️⃣ Promissory Estoppel | When a party makes a promise to do or forbear from doing something, and another acts upon it, the promisor cannot back out even if there is no formal contract. | Govt promises tax exemption to industry → later cannot withdraw retrospectively. | Union of India v. Anglo Afghan Agencies (AIR 1968 SC 718) • Decision: Govt bound by its promise even without consideration. • Significance: Introduced promissory estoppel in Indian administrative law. Motilal Padampat Sugar Mills v. State of U.P. (1979) 2 SCC 409 • Decision: State estopped from denying promised tax holiday. • Significance: Promissory estoppel applies against the State to ensure fairness. |
| 5️⃣ Estoppel by Silence / Acquiescence | When a person, having duty to speak, remains silent knowing another is acting to his prejudice, he is estopped later. | A sees B sell A’s goods as his own, stays silent → A estopped from later claiming them. | Greenwood v. Martins Bank Ltd. (1933 AC 51) • Decision: Silence amounts to misrepresentation where there is a duty to speak. • Significance: Recognises estoppel through omission. |
5. Doctrine of Estoppel – Nature and Rationale
| Aspect | Explanation |
|---|---|
| Nature | A rule of evidence and equity, not of substantive law. It prevents contradiction of one’s previous statement, act, or omission. |
| Object | To prevent fraud and injustice caused by inconsistent conduct or false representation. |
| Legal Basis | Section 119, BSA 2023 (same as Section 115, IEA 1872). |
| Underlying Maxim | “Allegans contraria non est audiendus” — a person alleging contradictions should not be heard. |
6. To Whom Does Estoppel Apply?
| Applies To | Does NOT Apply To |
|---|---|
| ✔️ Individuals making representations in personal or commercial matters. | ❌ The State in matters involving statutory powers or public interest (e.g., cannot be used to compel illegal acts). |
| ✔️ Parties in civil suits. | ❌ A minor, since no estoppel against a statute protecting minors. |
| ✔️ Agents and principals where representation was within authority. | ❌ A person ignorant of true facts or making innocent mistake. |
| ✔️ Government in administrative / policy matters involving promises (promissory estoppel). | ❌ Criminal cases involving guilt — estoppel cannot override truth or justice. |
Case: Union of India v. Indo-Afghan Agencies (AIR 1968 SC 718)
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Decision: Government bound by its promise of export incentives even without formal contract.
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Significance: Extended doctrine of estoppel against government in administrative law, provided no statutory violation.
7. Difference Between Estoppel and Res Judicata
| Basis | Estoppel | Res Judicata (S. 11 CPC) |
|---|---|---|
| Nature | Rule of evidence (procedural equity). | Rule of procedure and jurisdiction. |
| Source | Section 119, BSA 2023. | Section 11, Code of Civil Procedure, 1908. |
| Scope | Prevents a person from denying previous conduct or statement. | Prevents re-litigation of a matter already finally decided. |
| Applies Between | Same parties, based on representation and reliance. | Same parties, based on prior adjudication by a competent court. |
| Operates When | No prior judicial decision needed. | Requires an earlier judicial decision on merits. |
| Effect | Stops inconsistent pleadings or evidence. | Bars a fresh suit or issue on the same cause. |
| Illustrative Case | Pickard v. Sears (1837); Motilal Padampat Sugar Mills (1979). | Satyadhyan Ghosal v. Deorajin Debi (AIR 1960 SC 941). |
8. Effect of Estoppel on Evidence
| Aspect | Explanation |
|---|---|
| Bar on Contradictory Evidence | A person estopped cannot produce evidence contradicting his earlier representation or conduct. |
| Facilitates Judicial Efficiency | Prevents repetition of issues already admitted or represented. |
| Promotes Consistency & Honesty | Parties are bound by their word; evidence contrary to admitted facts is inadmissible. |
| Example: | If A admits B’s ownership of property and B builds on it relying on that, A cannot later lead evidence denying B’s title. |
| Case Reference: | B.L. Sreedhar v. K.M. Munireddy (2003) – Estoppel stops parties from producing contrary evidence to a written admission. |
9. Important Judicial Pronouncements (Quick Recap)
| Case | Court & Year | Principle Established |
|---|---|---|
| Pickard v. Sears | (1837, UK) | Laid down the classic rule of estoppel by conduct. |
| Union of India v. Anglo Afghan Agencies | (1968 SC) | Introduced Promissory Estoppel against the Government. |
| Motilal Padampat Sugar Mills v. State of U.P. | (1979 SC) | State cannot withdraw a promised tax concession once industries act upon it. |
| B.L. Sreedhar v. K.M. Munireddy | (2003 SC) | Admission in documents = binding estoppel. |
| Greenwood v. Martins Bank Ltd. | (1933, UK) | Silence where there’s a duty to speak = estoppel by acquiescence. |
10. Conclusion
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The Doctrine of Estoppel is a principle of equity, good faith, and justice that prevents a person from denying his own acts or statements if another has relied on them.
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Under Section 119 of the Bhartiya Sakshya Adhiniyam, 2023, estoppel is a rule of evidence ensuring that parties act consistently with their representations.
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While Res Judicata is a bar on relitigation, Estoppel is a bar on denial or contradiction.
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It promotes judicial efficiency, fairness, and reliability of evidence — ensuring that parties cannot mislead or deceive through changing stands.
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In essence:
“Estoppel upholds the integrity of evidence — it closes the door on deceit and keeps open the path of justice.”
❓ Does the Doctrine of Estoppel Apply to a Minor?
1️⃣ General Rule — NO, Estoppel Does Not Apply to a Minor
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The law does not apply estoppel against a minor because:
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A minor is not competent to contract under Section 10 and 11 of the Indian Contract Act, 1872.
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Any agreement made by a minor is void ab initio (Mohori Bibee v. Dharmodas Ghose, 1903).
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Therefore, a minor cannot be bound by his representations or false statements about age or capacity.
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Equitable principles cannot override statutory protection — equity follows the law, it cannot defeat it.
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2️⃣ Leading Case Law
| Case | Facts | Decision | Significance |
|---|---|---|---|
| Mohori Bibee v. Dharmodas Ghose (1903 30 IA 114, PC) | A minor mortgaged his property to a moneylender, falsely representing himself as of full age. | The Privy Council held the contract void and ruled that the minor was not estopped from pleading infancy, even though he had misrepresented his age. | Laid down the rule that estoppel cannot operate against a statute protecting minors. Minor’s misrepresentation cannot confer competence or liability. |
| Leslie (Ltd.) v. Sheill (1914 3 KB 607) | Minor obtained a loan by falsely representing himself as adult. | Court held that minor was not liable in contract or tort of deceit. | Reaffirmed that equity cannot be used to enforce a void contract; estoppel cannot apply against minors. |
| Khan Gul v. Lakha Singh (AIR 1928 Lah 609) | Minor fraudulently sold property; purchaser sought estoppel. | Court refused — saying no estoppel because that would make minor’s void contract enforceable. | Indian precedent confirming that minor’s incapacity cannot be removed by estoppel. |
1️⃣ Introduction
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Ordinarily, hearsay evidence is inadmissible in court, because the maker of the statement is not available for cross-examination.
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But Section 26 of the Bhartiya Sakshya Adhiniyam 2023 (corresponding to Section 32(1) of the Indian Evidence Act, 1872) provides an important exception — the dying declaration.
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The law accepts a dying person’s statement about the cause of his death or the circumstances leading to it, even though it is hearsay, because it is made in a situation of solemnity and truth.
Latin Maxim: Nemo moriturus praesumitur mentiri — “A man will not meet his Maker with a lie in his mouth.”
Thus, a dying declaration allows the voice of the victim to be heard through the evidence of others.
2️⃣ Statutory Provision — Section 26, BSA 2023
“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 his death comes into question, such statement is relevant whether the person who made it was or was not, at the time when it was made, under expectation of death.”
Bhagwan Ramdas Tupe v. State of Maharashtra, 2023 SCC OnLine Bom 1554. section 32(1) of the Evidence Act [BSA, 2023 Section 26] is an exception to the general rule that hearsay evidence is no evidence,
Essentials:
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The maker is dead.
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The statement relates to cause of death or circumstances of the transaction leading to death.
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The cause of death is in question.
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The statement is relevant even if the person did not expect death.
3️⃣ Meaning and Nature
A dying declaration is the statement of a person who has died, relating to the cause of his death or the circumstances that resulted in it.
It may be oral, written, or expressed by signs or gestures, and may be recorded by any person — preferably a Magistrate.
4️⃣ Object and Rationale
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Necessity: the only witness to the crime (the deceased) cannot testify.
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Trustworthiness: moral belief that a dying person speaks the truth.
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Justice: prevents failure of prosecution when other evidence is unavailable.
5️⃣ Forms of Dying Declaration
| Form | Explanation / Example | Case Law |
|---|---|---|
| Oral | Deceased tells relatives or doctor who attacked him. | State of U.P. v. Ram Sagar Yadav (1985 SC) – Oral declaration admissible if reliable. |
| Written | Recorded by Magistrate/police/doctor in writing. | Khushal Rao v. State of Bombay (AIR 1958 SC 22) – Most reliable form. |
| Gesture / Signs | Victim unable to speak but indicates by nods or eye movement. | Queen Empress v. Abdullah (1885 7 All 385) – Nods and signs admissible. |
| FIR as Dying Declaration | FIR lodged by victim who later dies. | K.R. Reddy v. Public Prosecutor (1976 SC). |
6️⃣ How a Dying Declaration Is Proved
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Preferably recorded by Magistrate in presence of a doctor’s certificate of mental fitness.
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Exact words of declarant should be recorded in his/her language.
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No prompting, tutoring, or coercion.
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Signature or thumb impression obtained if possible.
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Doctor’s certificate of mental condition desirable (not mandatory).
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Recorder (Magistrate/doctor/police) later testifies in court to its authenticity.
Case: Laxman v. State of Maharashtra (2002 6 SCC 710) – Absence of doctor’s certificate not fatal if evidence shows declarant was conscious.
7️⃣ Principles Governing Admissibility of Dying Declaration
These judicially developed principles ensure reliability and fairness.
| Principle | Explanation | Leading Case(s) & Ratio |
|---|---|---|
| 1. Principle of Necessity & Trustworthiness | Admissible because the maker is dead (necessity) and presumed truthful (trustworthiness). | Khushal Rao v. State of Bombay (1958 SC) – Dying declaration can be sole basis of conviction if truthful and voluntary. |
| 2. Relevancy to Cause of Death or Circumstances | Must directly relate to the cause of death or circumstances of the transaction resulting in death. Remote matters irrelevant. | Sharad Birdhichand Sarda v. State of Maharashtra (1984 SC) – Only statements having proximate connection with death are admissible. |
| 3. Expectation of Death Not Necessary | Unlike English law, the declarant need not be under immediate fear of death. | Uka Ram v. State of Rajasthan (2001 5 SCC 254) – Expectation of death not required under Indian law. |
| 4. Mental Fitness & Consciousness | Declarant must be in sound mind and fit to make coherent statements. Doctor’s certificate desirable. | Papier Singh v. State of Punjab (1977 4 SCC 141) – Rejected for lack of medical proof; Laxman v. State of Maharashtra (2002) – certificate not mandatory if evidence shows lucidity. |
| 5. Voluntariness – Free from Influence or Tutoring | Must be spontaneous and uninfluenced by others. | Ravi Chander v. State of Punjab (1998 9 SCC 303) – Statement must be product of free will. |
| 6. Consistency in Multiple Declarations | If more than one dying declaration, they must be consistent on material points; inconsistency weakens case. | P.V. Radhakrishna v. State of Karnataka (2003 6 SCC 443) – Contradictory declarations cannot form sole basis of conviction. |
| 7. Sole Basis of Conviction | A truthful dying declaration needs no corroboration if court is satisfied of its authenticity. | Khushal Rao v. State of Bombay (1958) & Ramavati Devi v. State of Bihar (1983 1 SCC 211). |
| 8. Form or Mode Not Material | Oral, written, or gestures — all valid if genuine. Magistrate-recorded ones carry highest value. | Mannu Raja v. State of M.P. (1976 3 SCC 104) – Police-recorded declaration admissible if truthful. |
| 9. FIR as Dying Declaration | FIR given by deceased later dying is admissible if it narrates cause or circumstances of death. | K.R. Reddy v. Public Prosecutor (1976 SC). |
| 10. Rule of Prudence (Corroboration When Doubtful) | Though not mandatory, corroboration is desirable if declaration appears suspicious or doubtful. | Paniben v. State of Gujarat (1992 2 SCC 474) – Laid down 10 guiding principles for courts while appreciating dying declarations. |
| 11. Circumstantial Relevancy | Statement must form part of the same transaction; remote or unrelated incidents excluded. | Sharad Birdhichand Sarda (1984 SC) – Chain of proximity between statement and death required. |
8️⃣ Circumstances Under Which Dying Declaration Is Admissible
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Declarant must be dead — death must have causal link to statement.
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Cause of death or surrounding circumstances must be in issue.
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Statement must be voluntary and genuine.
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Declarant mentally fit at the time of making it.
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Recorded properly by competent person (preferably Magistrate).
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Free from influence, tutoring, or coercion.
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Made in ordinary language, not suggested or dictated.
When these conditions are satisfied, the declaration becomes substantive evidence and can alone sustain conviction.
9️⃣ Illustrative Case Summaries
| Case | Facts | Decision / Ratio | Principle Established |
|---|---|---|---|
| Khushal Rao v. State of Bombay (1958 SC) | Victim’s written statement before magistrate. | Court upheld conviction solely on dying declaration. | Can be sole basis of conviction; procedural safeguards. |
| Laxman v. State of Maharashtra (2002 SC) | No doctor’s certificate attached. | Not fatal; mental fitness proved by evidence. | Certificate desirable, not essential. |
| Paniben v. State of Gujarat (1992 SC) | Multiple declarations with minor variations. | Court consolidated principles for appreciation. | Dying declaration must inspire full confidence. |
| P.V. Radhakrishna v. State of Karnataka (2003 SC) | Two inconsistent declarations. | Both examined; conviction only if consistent. | Consistency ensures reliability. |
| Uka Ram v. State of Rajasthan (2001 SC) | Declarant not expecting death. | Expectation of death unnecessary. | Indian law broader than English rule. |
| Queen Empress v. Abdullah (1885 All HC) | Victim indicated by signs who attacked her. | Gestural declaration admissible. | Form immaterial; substance matters. |
🔟 Procedure for Recording Dying Declaration (Judicial Guidelines)
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Magistrate should record it whenever possible.
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Doctor must certify that victim is conscious and fit.
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Simple, leading-free questions in local language.
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Exact words of declarant recorded.
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Read over to declarant and confirm accuracy.
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Signature / thumb impression obtained.
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Certification of voluntariness & fitness appended.
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Witnesses present to attest.
(As laid down in Khushal Rao v. State of Bombay and Paniben v. State of Gujarat)
1️⃣1️⃣ Law Relating to Dying Declaration in India (Comparison with English Law)
| Feature | Indian Law (BSA 2023) | English Law |
|---|---|---|
| Expectation of Death | Not necessary. | Mandatory. |
| Scope | Covers cause and surrounding circumstances. | Limited to cause of death. |
| Recorder | Any person (preferably Magistrate). | Justice of Peace / Magistrate. |
| Corroboration | Not mandatory. | Required as prudence. |
| Form | Oral, written, gesture. | Usually written. |
1️⃣2️⃣ Conclusion
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The dying declaration is a unique and humane exception to the hearsay rule — it allows the court to hear the last words of the deceased.
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Its admissibility rests on necessity and trustworthiness, but its evidentiary weight depends on mental fitness, voluntariness, and consistency.
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Under Section 26 of the Bhartiya Sakshya Adhiniyam 2023, the statement is admissible even if not made under expectation of death.
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Judicial decisions from Khushal Rao to Paniben and P.V. Radhakrishna have crystallised guiding principles to ensure that this exceptional rule is not misused.
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A truthful dying declaration can stand alone as the foundation of conviction; a doubtful one must be corroborated.
💬 “A dying declaration is the voice of justice from beyond the grave — solemn, irreplaceable, and deserving of reverent scrutiny.”
1. What is meant by “expert opinion” / “expert evidence”
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An expert opinion means the view or conclusion given by a person who has special knowledge, skill, training or experience in a particular field (such as science, art, handwriting, digital forensics etc), which is beyond the ordinary knowledge of the Court. Drishti Judiciary+3Lawctopus+3ijlsi.com+3
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“Expert evidence” (or “expert testimony”) refers to statements, reports or testimony given by such an expert in court proceedings, for the purpose of assisting the court to form an opinion on a technical or specialised issue. docs.manupatra.in+1
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Under the IEA, such opinions are “relevant facts” (i.e., admissible evidence) when the Court has to form an opinion upon a point of foreign law, science, art, or as to the identity of handwriting or finger-impressions. (Section 45 IEA) Lawctopus+2SSRN+2
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Under the BSA, the relevant provisions are for example: Section 39 (Opinions of experts) and Section 40 (Facts bearing upon opinions of experts). JudiX+1
So: the expert gives an opinion; the court uses it as assistance in a technical matter; that evidence is termed “expert evidence”.
2. Who is an expert?
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Under Section 45 IEA the definition would be: a person “specially skilled” in foreign law or in science or art, or handwriting or finger impressions. Drishti Judiciary+1
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In more detail: the expert must have special knowledge acquired by study, experience or practice in that field. Merely being a witness to facts is not enough. ijlsi.com+1
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The Court in e.g. State of H.P. v. Jai Lal (1999) held that to bring the evidence of a witness as that of an expert it must be shown that he has made a special study of the subject or acquired special experience therein; i.e., that he is skilled and has adequate knowledge of the subject. Law Web+1
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In short: the person must not just be giving a factual account, but must give an opinion based on specialised knowledge. The role is advisory, not deciding the case. Law Web+1
Thus: “expert” means a specialist in a relevant field whose opinion helps the Court.
3. When and in what cases the opinion of an expert is relevant
Under IEA
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Section 45 IEA: When the Court has to form an opinion on a point of foreign law, or of science, or art, or as to identity of handwriting or finger‐impressions. Lawctopus+1
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Section 46 IEA: Facts which are not otherwise relevant become relevant if they support or are inconsistent with the opinions of experts when such opinions are relevant. Legal Service India
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Section 47 IEA: Opinion as to handwriting, when relevant. Drishti Judiciary
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Section 48 IEA: Opinion as to existence of right or custom when relevant. Drishti Judiciary
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Section 49 IEA: Opinion as to usages, tenets, etc., when relevant. Drishti Judiciary
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Section 51 IEA: Grounds of opinion when relevant. Drishti Judiciary
Under BSA (2023)
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Section 39 BSA: Opinions of experts: Similar scope as IEA’s Section 45 — when the Court has to form an opinion in matters of foreign law, science, art, identity verification etc. JudiX+1
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Section 40 BSA: Facts bearing upon opinions of experts. Facts which are not otherwise relevant become relevant if they support or are inconsistent with experts’ opinions. JudiX
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Section 41 BSA: Opinion as to handwriting and signature, when relevant. India Code
Illustrations
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Under IEA illustration under Section 45: “The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison … are relevant.” Law Web+1
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Another: “The question is whether A, at the time of doing a certain act, was by reason of unsoundness of mind, incapable of knowing the nature of the act … The opinions of experts … are relevant.” Law Web
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Under BSA similarly the notion is carried forward in Section 39/40. JudiX
When is it required?
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When the point to be decided involves specialised technical or scientific (or artistic) knowledge that the judge or fact-finder cannot reasonably be expected to possess. For example forensic science, handwriting comparison, digital forensics, medical evidence, etc.
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Courts have held that if the matter is within common knowledge of courts (lay knowledge) then expert evidence may not be necessary. Law Web+1
4. Are opinions of an expert binding on the court?
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The short answer: No — expert opinions are not binding on the court; the court is free to accept or reject them. LawGratis+2student.manupatra.com+2
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For example, one article states: “The expert’s opinion is merely advisory and not binding on the Court. … It cannot be used for conclusive proof but merely acts as corroborative evidence.” Mondaq
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The court in IEA context: “the opinions of experts are only relevant facts, still the court must investigate, weigh, and decide for itself.”
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Thus, the value (weight) of expert evidence depends on how reliable the expert’s credentials, methods and reasoning are, and how well the opinion is supported by underlying facts. If an expert opinion is contradicted by other reliable evidence, the Court may reject it. Lawctopus
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The Court must still apply its own judgment, treating expert opinion as an aid and not as substitute for its reasoning. Law Web
So key point: expert opinion is relevant but not binding.
5. What matters for which an expert can be relied upon in a court
Some of the matters/fields where expert opinion is typically relied upon:
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Forensic science (chemical analysis of poisons, toxicology)
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Medical issues: mental unsoundness of mind, cause of death, injuries etc.
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Handwriting comparison / signature verification / finger‐impression identity.
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Digital forensics / electronic evidence (under IEA Section 45A, and under BSA similar) Legal Service India
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Foreign law (if applicable) or art where expert knowledge is needed.
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Usages, customs, tenets, rights and relationships in certain contexts (IEA Sections 48-51) Drishti Judiciary
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Under BSA: matters where Court has to form an opinion on science, art, handwriting etc (Section 39 BSA) JudiX
Illustrative examples:
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Poison case: Expert toxicologist opines on symptoms, helps Court determine cause of death.
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Handwriting case: Two documents allegedly by same person, handwriting expert gives opinion whether they match.
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Unsound mind case: Psychiatrist gives opinion on insanity/unsoundness of mind of accused.
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Digital evidence: Expert opines on authenticity or extraction of data from computer devices.
The Court will examine: the expert’s qualifications, the reliability of his methods, whether underlying data/facts are correctly placed, whether cross-examination happened, what the opposing expert says, whether independent corroboration exists. Mondaq
6. When is the opinion of a “third person” relevant?
By “third person” we mean a non‐expert giving an opinion (or someone acquainted with certain facts). Under IEA, there are provisions such as:
-
Section 47 IEA: Opinion as to handwriting, when relevant — allows opinion of a person acquainted with the handwriting of a person (even though not a “handwriting expert”) to be relevant. Drishti Judiciary+1
-
Section 50 IEA: Opinions of relationship when relevant — opinion expressed by conduct of a person who has special means of knowledge as to the relationship of one person to another. But even here, though such opinion is relevant, the Act says it is not sufficient to prove marriage in certain prosecutions. Drishti Judiciary
Under BSA similarly: Section 41 (Opinion as to handwriting and signature, when relevant). Section 40 (Facts bearing on expert opinions) may incorporate some analogous third‐person opinions. JudiX
In sum: opinions of a “third person” who is not strictly the specialist expert but is acquainted with facts (like handwriting samples, family relationships, usages) can be relevant but they too are not binding. The court must evaluate their weight.
7. What is “expert evidence”?
-
“Expert evidence” refers to the body of testimony or report given by an expert witness – i.e., their opinion plus the basis (data, observations, tests) on which they form that opinion. docs.manupatra.in
-
It becomes admissible evidence under the relevant statute (IEA Sections 45-51; BSA Sections 39-41 etc).
-
Its purpose is to assist the court in forming its own judgment when a question is technical, scientific or beyond ordinary experience. The court uses expert evidence, but does not abdicate its judicial role. Lawctopus
-
The value of expert evidence lies in its reliability, basis, methodology, qualifications of the expert, and whether the opinion is properly grounded in facts or tests. A mere assertion without basis may carry little or no weight.
⚖️ Important Case Laws (with Explanation)
(1) State of H.P. v. Jai Lal & Others (1999) 7 SCC 280
Facts:
The prosecution relied on an expert to prove certain scientific aspects of a case. The issue arose whether the expert was truly qualified and whether his evidence could be accepted.
Held:
The Supreme Court held:
-
An expert must have made a special study or acquired special experience in the subject.
-
The opinion must have a demonstrable basis — not mere assertion.
-
The court must evaluate the reasoning before relying on it.
Principle:
👉 The evidence of an expert is advisory, not conclusive. The court must satisfy itself about its reliability.
(2) Titli v. Jones (AIR 1934 All 273)
Facts:
This case involved an expert’s opinion on handwriting.
Held:
The court observed:
“The real function of the expert is to put before the Court all the materials, together with reasons which induce him to come to a conclusion, so that the Court may form its own judgment by its own observation.”
Principle:
👉 Expert is an assistant to the court, not a substitute for judicial judgment.
(3) State of Maharashtra v. Damu (2000) 6 SCC 269
Facts:
A murder case where the medical expert gave opinion on the cause of death.
Held:
The Court said that medical opinion should not be treated as the final word. If consistent with other evidence, it is reliable; if inconsistent, it can be discarded.
Principle:
👉 Expert opinion must fit coherently with other evidence; otherwise it loses value.
(4) Ram Chandra v. State of U.P. (AIR 1957 SC 381)
Facts:
The expert’s handwriting opinion was in conflict with direct evidence.
Held:
The Supreme Court ruled that:
-
Expert opinion is merely an opinion.
-
It cannot override direct evidence or eyewitness testimony.
Principle:
👉 Expert evidence is weak type of evidence; it is corroborative, not substantive.
(5) Murari Lal v. State of M.P. (AIR 1980 SC 531)
Facts:
Handwriting comparison was at issue. There were conflicting expert opinions.
Held:
The Court observed:
-
Expert opinion should be carefully scrutinized.
-
The court can itself compare handwriting under Section 73 of IEA (or corresponding BSA provision).
-
Expert evidence is a guide, not binding.
Principle:
👉 A judge is not bound to accept an expert’s view if his own observation differs.
(6) Malay Kumar Ganguly v. Dr. Sukumar Mukherjee (2009) 9 SCC 221
Facts:
Medical negligence case; expert committee reports were conflicting.
Held:
The Court said:
-
Expert testimony is a piece of evidence, not a replacement for the court’s reasoning.
-
Courts must assess the competence and impartiality of experts.
Principle:
👉 Expert evidence must be tested like any other evidence — through cross-examination and corroboration.
(7) Ramesh Chandra Agarwal v. Regency Hospital (2009) 9 SCC 709
Facts:
Dispute about medical negligence; conflicting expert opinions.
Held:
The Court laid down that:
-
An expert must be independent, competent, and unbiased.
-
Courts should prefer experts whose reasoning is logical and based on standard principles.
Principle:
👉 Credibility of an expert depends on both competence and impartiality.
(8) Magan Bihari Lal v. State of Punjab (AIR 1977 SC 1091)
Facts:
The conviction was based largely on a handwriting expert’s report.
Held:
The Court ruled:
“There is no hard and fast rule that expert evidence must always be accepted. It is unsafe to base conviction solely on expert opinion.”
Principle:
👉 Expert opinion cannot be the sole basis for conviction.
🔹 4. When Opinion of a Third Person is Relevant
Under Bhartiya Sakshya Adhiniyam (Similar to IEA §§47–50)
-
Section 41 (BSA): Opinion as to handwriting or signature is relevant when given by a person acquainted with such handwriting/signature — even if not an expert.
(e.g., clerk, friend, family member who has seen the person write often.) -
Section 42 (BSA): Opinion as to existence of right or custom is relevant when given by those familiar with it.
-
Section 43 (BSA): Opinion as to usages, tenets, relationship, etc., relevant when given by persons having special means of knowledge (like community elders).
Example:
If a villager testifies about a long-followed land usage or custom, his opinion is relevant though he is not an “expert.”
🔹 5. Matters Where Expert Can Be Relied Upon
| Type of Expert | Field / Use |
|---|---|
| Medical expert | Cause of death, injury, age of wounds, mental condition |
| Forensic expert | Blood, poison, ballistic evidence |
| Handwriting/fingerprint expert | Authorship of documents, forgeries |
| Digital forensics expert | Authenticity of emails, digital signatures, cyber evidence |
| Foreign law expert | Interpretation of foreign statutes |
| Customary/usage expert | Proving trade usages, customs, relationships |
🔹 6. Principles to Remember
-
Expert opinion is relevant but not conclusive.
-
Court must examine the basis and reasoning of the expert.
-
Expert must be qualified and independent.
-
Expert evidence must corroborate other evidence.
-
Court can compare handwriting or signatures itself (Sec. 73 IEA / corresponding BSA).
-
Expert must state reasons — not just conclusions.
🔹 7. Summary Table (Old & New Law)
| Aspect | Indian Evidence Act, 1872 | Bhartiya Sakshya Adhiniyam, 2023 |
|---|---|---|
| Opinions of experts | Section 45 | Section 39 |
| Facts supporting or inconsistent with expert opinion | Section 46 | Section 40 |
| Opinion as to handwriting | Section 47 | Section 41 |
| Opinion as to existence of right/custom | Section 48 | Section 42 |
| Opinion as to usages, tenets, relationship | Sections 49–50 | Section 43 |
💬 In Simple Words
An expert helps, not decides.
Courts are the judges of fact; experts are aids to understanding.
Their opinions are relevant, never binding.
(Under Bhartiya Sakshya Adhiniyam, 2023 – Sections 104 to 117)
(Corresponding to Sections 101 to 114 of the Indian Evidence Act, 1872)
🔹 1. Meaning and Concept
The term “Burden of Proof” signifies the obligation on a party to establish the truth of a fact asserted by him in a legal proceeding.
In every case, certain facts are alleged by one party and denied by the other. The party who wants the Court to act upon those facts must prove their existence.
⚖️ Section 104, Bhartiya Sakshya Adhiniyam, 2023 provides:
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.”
Thus, the burden is always on the affirmative party – the one who asserts, not the one who denies.
🧩 Meaning of the Quoted Statement
“The burden of proof lies on that person who would fail if no evidence at all were given on either side.”
If both parties give no evidence, the party whose case requires proof to succeed will fail.
Hence, the burden of proof lies upon that party.
Example:
A sues B alleging that B trespassed on his land.
If both parties give no evidence, A will fail because he has not proved ownership or trespass.
Therefore, the burden lies on A.
🔹 2. Distinction Between “Burden of Proof” and “Onus of Proof”
| Aspect | Burden of Proof | Onus of Proof |
|---|---|---|
| Meaning | Duty to prove the case as a whole | Duty to prove a specific fact or issue |
| Nature | Fixed by law; does not shift | May shift as evidence is introduced |
| Determines | Who must begin and sustain proof | Who must offer evidence at a given stage |
| Example | In murder, prosecution has burden | If accused pleads alibi, onus shifts to him |
Judicial Observation:
In Addagada Raghavamma v. Addagada Chenchamma (AIR 1964 SC 136), the Supreme Court clarified:
“There is an essential distinction between burden of proof and onus of proof. The burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts from one side to the other as the case progresses.”
🔹 3. General Principles of Burden of Proof
The concept of burden of proof is based on common sense and fairness — the person who makes an assertion must support it with evidence.
(i) He who asserts must prove
Derived from the maxim “Ei incumbit probatio qui dicit, non qui negat” —
the burden lies on the one who affirms, not on one who denies.
Because negative facts are often impossible to prove.
(ii) Burden never shifts
The legal burden remains fixed on one party throughout the trial, though the onus (practical obligation to produce evidence) may shift back and forth.
(iii) Burden may be shifted by statutory presumptions
Certain legal provisions expressly reverse or modify the normal burden — e.g.,
-
Section 114 (abetment of suicide by a married woman),
-
Section 115 (dowry death),
-
Section 109 (facts within special knowledge).
(iv) Burden and degree of proof differ in civil and criminal cases
The standard of proof depends on the nature of the case —
“preponderance of probability” in civil matters;
“proof beyond reasonable doubt” in criminal matters.
(v) Presumptions under law affect burden
Presumptions of law (like legitimacy, dowry death, possession) can ease the task of one side and shift the burden to the other.
🔹 4. Principles of Burden of Proof in Civil Cases
(a) Initial Burden
In civil proceedings, the plaintiff must prove all the facts necessary to establish his right or cause of action.
Once he does so, the onus shifts to the defendant to disprove or establish contrary facts.
⚖️ Section 105 (BSA) (corresponding to Section 102 IEA):
“The burden of proof in a suit lies on that person who would fail if no evidence were given on either side.”
(b) Standard of Proof
The degree of certainty required is “preponderance of probabilities.”
That is, the version which appears more probable to the court is accepted.
(c) Illustration
A sues B for recovery of money alleging a loan.
A must prove the lending by documents or witnesses.
If A produces proof of payment, the onus shifts to B to show repayment.
(d) Leading Case:
Bharat Barrel & Drum Manufacturing Co. v. ESI Corporation (1972) 1 SCC 860
Facts:
The employer disputed liability to contribute under the Employees’ State Insurance Act.
Judgment:
The Supreme Court held that the burden of proof in civil cases is discharged when the party shows that its version is more probable than the other.
Implication:
→ In civil cases, absolute certainty is not required; probability and balance of evidence suffice.
🔹 5. Principles of Burden of Proof in Criminal Cases
(a) Initial Burden
In criminal trials, the prosecution always bears the burden of proving guilt of the accused.
The accused is presumed innocent until the prosecution establishes guilt beyond reasonable doubt.
⚖️ Section 108, BSA (corresponding to Section 105 IEA):
“When a person is accused of an offence, the burden of proving the existence of circumstances bringing the case within any general exception lies on him.”
Hence, the burden of establishing guilt remains on the prosecution, while proving exceptions (like insanity or self-defence) lies on the accused.
(b) Standard of Proof
The prosecution must prove the guilt beyond reasonable doubt, not on mere suspicion.
Even if two views are possible, the one favorable to the accused must be adopted.
(c) Key Case Law: Woolmington v. Director of Public Prosecutions (1935 AC 462)
Facts:
The accused shot his wife and claimed it was accidental.
The trial judge directed the jury that it was for the accused to prove accident.
Judgment:
The House of Lords held that the burden of proof never shifts from the prosecution.
Lord Sankey famously stated:
“Throughout the web of English Criminal Law runs the golden thread that it is the duty of the prosecution to prove the prisoner’s guilt.”
Implication:
→ Adopted in Indian criminal jurisprudence — the prosecution must prove guilt, and any reasonable doubt acquits the accused.
(d) Case Law: Shambhu Nath Mehra v. State of Ajmer (AIR 1956 SC 404)
Facts:
The accused, a government driver, was charged with misappropriating petrol.
He claimed the petrol was used for official duty.
Judgment:
The Supreme Court held that facts within the special knowledge of the accused (use of petrol) must be proved by him under Section 106 IEA (now Section 109 BSA).
Implication:
→ Established that though the burden of proof remains with the prosecution,
the onus to explain facts within exclusive knowledge rests with the accused.
(e) Case Law: Hanumant Govind Nargundkar v. State of M.P. (AIR 1952 SC 343)
Judgment:
Court held that circumstantial evidence must exclude every hypothesis except the guilt of the accused.
Implication:
→ Reiterated that criminal conviction requires certainty, not conjecture.
🔹 6. Shifting Burden of Proof and Presumptions
Though the legal burden does not shift, the evidential burden (onus) can shift under statutory presumptions.
-
Section 109, BSA → facts within special knowledge (accused must explain).
-
Section 114, BSA → presumption of abetment of suicide by a married woman.
-
Section 115, BSA → presumption of dowry death.
-
Section 116, BSA → legitimacy of child born during marriage.
Presumptions either “may presume” (discretionary) or “shall presume” (mandatory).
🔹 7. Special Burden in Dowry Death Cases
⚖️ Section 115, Bhartiya Sakshya Adhiniyam (2023)
(Corresponding to Section 113B, Indian Evidence Act)
“When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death she was subjected to cruelty or harassment for or in connection with demand for dowry, the court shall presume that such person caused the dowry death.”
🧠Ingredients:
-
Death within 7 years of marriage.
-
Death not under normal circumstances.
-
Proof of cruelty or harassment for dowry “soon before her death.”
When these are proved → mandatory presumption arises, shifting the burden to accused.
📚 Case 1 – Kans Raj v. State of Punjab (2000) 5 SCC 207
Facts:
Wife died within 2 years of marriage under suspicious circumstances.
Evidence showed continuous harassment for dowry.
Judgment:
Court held that once prosecution proves cruelty for dowry soon before death,
Section 113B (now 115 BSA) applies mandatorily.
The presumption of dowry death must be drawn against the husband and his relatives.
Implication:
→ Court has no discretion once foundational facts exist.
→ The burden shifts to accused to disprove involvement.
📚 Case 2 – Vidhya Devi v. State of Haryana (2004) 9 SCC 476
Judgment:
The Court held that “soon before” must be understood flexibly.
Even if some time elapsed, if cruelty and death are part of the same transaction, presumption arises.
Implication:
→ Liberal construction ensures protection of women under Section 304B IPC.
📚 Case 3 – Sher Singh @ Partapa v. State of Haryana (2015 SCC OnLine SC 191)
Judgment:
Reaffirmed that the presumption is mandatory once ingredients of Section 304B are satisfied.
Implication:
→ Strengthens statutory protection and clarifies that burden effectively shifts to accused.
🔹 8. Special Burden in Abetment of Suicide by Married Woman
⚖️ Section 114, BSA (Corresponding to Section 113A IEA)
“Where a woman commits suicide within seven years of her marriage and it is shown that her husband or his relatives had subjected her to cruelty, the court may presume that such suicide was abetted by her husband or relatives.”
⚖️ Nature of Presumption:
-
Discretionary (court may presume, not shall).
-
Court must assess nexus between cruelty and suicide.
📚 Case 4 – Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618
Facts:
Wife committed suicide after her husband told her “you may go and die.”
Prosecution invoked Section 113A.
Judgment:
Supreme Court held that the presumption arises only if cruelty had a proximate link to the suicide.
Casual quarrels or trivial acts are insufficient.
Implication:
→ Section 113A gives judicial discretion; it is not automatic.
📚 Case 5 – Gurbachan Singh v. Satpal Singh (1990) 1 SCC 445
Facts:
Wife committed suicide within 2 years of marriage after repeated dowry harassment.
Judgment:
Court held that presumption of abetment arises because the cruelty was directly connected to suicide.
Implication:
→ Demonstrates protective nature of presumption for married women.
📚 Case 6 – Hans Raj v. State of Haryana (2004) 12 SCC 257
Judgment:
Court held that cruelty must be “soon before” the suicide; distant cruelty does not attract presumption.
Implication:
→ Courts must balance protection of women with fairness to accused.
🔹 9. Supporting Case Laws on General Burden of Proof
📚 Case 7 – Addagada Raghavamma v. Chenchamma (AIR 1964 SC 136)
Clarified distinction between burden of proof and onus of proof.
📚 Case 8 – State of U.P. v. Ram Veer Singh (2007)
Held that the burden of proving guilt in criminal cases always lies on prosecution.
📚 Case 9 – State of M.P. v. Paltan Mallah (2005)
Held that presumption of innocence is a human right and burden lies on prosecution to rebut it.
🔹 10. Summary Table
| Aspect | Civil Cases | Criminal Cases |
|---|---|---|
| Initial Burden | Lies on plaintiff | Lies on prosecution |
| Standard of Proof | Preponderance of probabilities | Beyond reasonable doubt |
| Onus of Proof | Shifts after prima facie case | May shift if statutory presumption applies |
| Presumption | Discretionary (e.g. legitimacy) | Mandatory in special offences (dowry death) |
🔹 11. Conclusion
The law of burden of proof under the Bhartiya Sakshya Adhiniyam is a cornerstone of justice.
It ensures that:
-
No person is punished without proof,
-
The innocent are protected by presumption of innocence,
-
And justice is achieved through fairness of evidentiary responsibility.
In civil cases, burden depends on probabilities;
In criminal cases, guilt must be established beyond doubt.
However, in special social offences like dowry death and abetment of suicide,
the legislature has rightly shifted the burden to protect vulnerable women.
Thus, the burden of proof is the backbone of fair trial — balancing protection of the innocent and accountability of the guilty.
Q. What do you understand by evidence? Discuss various types of evidence?
Differentiate between each of them. Under what circumstances can secondary evidence be given in documents? Is an affidavit included as an evidence?
Hearsay is no evidence at all explain. Which materials cant be considered as evidence? Explain application of Bhartiya Sakshya Adhiniyam.
📘 EVIDENCE – Meaning, Types and Legal Principles
(Under Bhartiya Sakshya Adhiniyam 2023 – Sections 2, 55 to 65)
🔹 1. Meaning of Evidence
⚖️ Statutory Definition
Section 2(1)(b), Bhartiya Sakshya Adhiniyam 2023 defines Evidence as:
“Evidence means and includes—
(a) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry (called oral evidence); and
(b) all documents including electronic or digital records produced for inspection of the Court (called documentary evidence).”
Thus, evidence is the means by which facts are proved or disproved in a judicial proceeding.
🔹 2. Object and Purpose of Evidence
The law of evidence is the foundation of justice.
Its object is to:
-
Prevent conjecture, guess or hearsay.
-
Ensure decisions are based on proved facts.
-
Lay down rules on what the court may legitimately consider.
🔹 3. Types of Evidence
| Type | Explanation | Statutory Basis (BSA) | Example |
|---|---|---|---|
| 1. Oral Evidence | Statements made by witnesses in court relating to facts under inquiry. | § 59–60 | Eyewitness testimony that he saw A stab B. |
| 2. Documentary Evidence | Contents of documents, including electronic/digital records, produced for inspection. | § 61–64 | Sale deed, contract, photograph, CCTV footage, WhatsApp chats. |
| 3. Primary Evidence | The document itself produced in original before the court. | § 62 | The original contract, original email printout. |
| 4. Secondary Evidence | Substitutes for the original when original is unavailable (certified copies, photocopies, oral accounts of contents, etc.). | § 63–65 | Certified copy of a registered sale deed. |
| 5. Direct Evidence | Evidence that directly proves a fact without inference. | Judicial concept | Eyewitness of the act. |
| 6. Circumstantial Evidence | Indirect evidence from which existence of fact is inferred. | Judicial concept | Fingerprints on weapon, motive, conduct. |
| 7. Real (Physical) Evidence | Material objects produced before court. | — | Knife, blood-stained clothes. |
| 8. Hearsay Evidence | Statement made out of court repeated by another person in court. Generally inadmissible. | § 60 (BSA) | “X told me that Y killed Z.” |
🔹 4. Differences Between Major Types of Evidence
| Basis | Primary Evidence | Secondary Evidence |
|---|---|---|
| Meaning | Original document produced. | Copy/substitute of the original. |
| Admissibility | Always admissible. | Admissible only in circumstances under § 65 (BSA). |
| Reliability | Highest. | Lower; must be corroborated. |
| Example | Original sale deed. | Certified copy of sale deed. |
| Basis | Direct Evidence | Circumstantial Evidence |
|---|---|---|
| Nature | Proves fact directly. | Proves fact indirectly. |
| Example | “I saw A kill B.” | “A was last seen with B, blood on his clothes.” |
| Value | Strongest if credible. | Needs chain of complete circumstances. |
🔹 5. When Can Secondary Evidence Be Given (Section 65, BSA / § 65 IEA)
Secondary evidence of a document may be given in the following exceptional circumstances:
-
When the original is in possession of the opposite party or a person who refuses to produce it after notice.
-
When the original has been lost or destroyed.
-
When the original is not easily movable (e.g., wall inscription).
-
When the original is a public document.
-
When the original is kept in a public office and certified copies are allowed.
-
When the document is of numerous accounts or records where examination of original would be inconvenient.
-
When produced from proper custody in electronic form, certified as per § 63 BSA (same as § 65B IEA).
⚖️ Case Law – J. Yashoda v. K. Shobha Rani (2007 5 SCC 730)
Facts: The party sought to produce a photocopy without proving loss of original.
Judgment: Supreme Court held that secondary evidence is not admissible unless foundational facts bringing the case within Section 65 are proved.
Implication: Secondary evidence is not a right but a permission; strict conditions apply.
🔹 6. Is an Affidavit Evidence?
⚖️ Legal Position
An affidavit is not evidence unless a specific law allows it.
-
Under Section 1 of the Evidence Act (and identical principle under BSA), evidence means oral statements made before the court.
-
An affidavit is a written statement sworn before an officer, not before the court itself.
📚 Case Law – Khandesh Spg. & Wvg. Mills v. R. B. Bholanath Shankar (AIR 1958 SC 341)
Judgment: An affidavit is not included in “evidence” because it is not tested by cross-examination.
Exceptions:
-
Where statutes (e.g., Order XIX CPC, Election law, tribunals) expressly permit affidavits.
-
In interlocutory matters where parties consent.
Implication: Affidavits are evidentiary substitutes only when permitted; otherwise, they have no probative value.
🔹 7. Hearsay Evidence – “No Evidence at All”
⚖️ Meaning
“Hearsay” means a statement made by someone other than the witness, repeated in court to prove the truth of its contents.
Example: “My friend told me that he saw the accused stab the victim.”
The speaker has no personal knowledge — hence unreliable.
⚖️ Section 60 BSA / § 60 IEA
Requires that oral evidence must, in all cases, be direct. Therefore, hearsay is excluded.
📚 Case Law – Subramaniam v. Public Prosecutor (1956 1 WLR 965)
Judgment: Hearsay is inadmissible when offered to prove truth of a statement, but may be admissible to show the fact that such a statement was made (e.g., motive, state of mind).
📚 Case Law – Tukaram S. Dighole v. Manikrao Shivaji Kokate (2010 4 SCC 329)
Judgment: Held that “Hearsay evidence is no evidence at all.”
Reason: It deprives the adverse party of opportunity for cross-examination.
Implication: Only persons who have direct perception of the fact can testify; hearsay cannot sustain conviction or liability.
🔹 8. What Materials Cannot Be Considered as Evidence
-
Unsworn statements or pleadings.
-
Affidavits (unless specifically permitted).
-
Arguments of counsel – not evidence.
-
Statements in police diaries or FIRs (unless used for contradiction or corroboration under §§ 155–158 BSA).
-
Media reports, newspaper articles, WhatsApp forwards – all are hearsay.
-
Un-exhibited documents – documents not formally proved or marked as exhibits.
-
Illegally obtained evidence violating fundamental rights (e.g., confessions under threat) — may be excluded by judicial discretion.
🔹 9. Application and Scope of Bhartiya Sakshya Adhiniyam 2023
⚖️ Section 1 – Short Title, Extent and Commencement
The Act applies to all judicial proceedings in or before any court in India, but not to:
-
Affidavits presented to any court or officer, and
-
Arbitration proceedings (unless parties agree otherwise).
✳️ Key Modern Features / Reforms
-
Digital and electronic records explicitly included in “documentary evidence.”
-
Gender-neutral terminology (“person” instead of “man or woman”).
-
Simplified language and numbering of provisions (e.g., Evidence Act § 45 → BSA § 39).
-
Codified digital chain of custody for electronic evidence (§ 63–65).
-
Continues the same core principles of the 1872 Act but modernized for technology.
Implication:
The Bhartiya Sakshya Adhiniyam modernizes Indian evidentiary law without changing the essential doctrines—such as relevance, admissibility, direct proof, and exclusion of hearsay.
🔹 10. Summary Table
| Concept | Core Rule | Authority / Section |
|---|---|---|
| Evidence – meaning | Oral + documentary including electronic | § 2(1)(b) BSA |
| Oral evidence must be direct | Hearsay inadmissible | § 60 BSA |
| Primary vs. Secondary evidence | Original v. copy; copy allowed only in exceptions | §§ 62–65 BSA |
| Affidavit | Not evidence unless statute allows | Case law + § 1 BSA |
| Hearsay | “No evidence at all” | § 60 BSA; Tukaram S. Dighole |
| Materials not evidence | Pleadings, arguments, newspapers, un-exhibited docs | Judicial principles |
| Application | Applies to all judicial proceedings (except affidavits & arbitration) | § 1 BSA |
🔹 11. Conclusion
The law of evidence ensures that courts decide only on verified, reliable, and legally admissible materials.
Under the Bhartiya Sakshya Adhiniyam 2023, evidence includes oral statements and digital or documentary proof.
Primary evidence is the rule; secondary evidence is the exception.
Affidavits and hearsay remain excluded unless specially authorized.
In essence, the Act upholds the golden maxim:
“No fact is proved unless it is proved according to law.”
This framework continues to protect the integrity of India’s justice system while evolving for the digital age.
Q. General principals of examination. Various kinds of examination. Rules and procedure for various types of cross examination. what is examination in chief cross examination and re examination? what questions can be put in each type?
📘 EXAMINATION OF WITNESSES
(Under Bhartiya Sakshya Adhiniyam, 2023 – Sections 140 to 159)
(Corresponding to Sections 135–166 of the Indian Evidence Act, 1872)
🔹 1. Meaning of Examination of Witness
When a witness is called to give evidence in court, he is examined by parties and the court to elicit truth about the facts in issue.
This process is called examination of witnesses.
⚖️ Section 140, Bhartiya Sakshya Adhiniyam, 2023
“The examination of a witness by the party who calls him shall be called his examination-in-chief;
the examination of that witness by the adverse party shall be called his cross-examination;
the examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.”
Thus, the process has three stages:
-
Examination-in-chief
-
Cross-examination
-
Re-examination
🔹 2. General Principles of Examination of Witnesses
-
Examination must be oral and in open court
– Witnesses must depose facts personally within their knowledge (§ 59–60 BSA). -
Purpose of examination
– To elicit relevant facts and test veracity, accuracy, and credibility of witness. -
Order of examinations (§ 141 BSA)
-
Witnesses are examined in the order decided by the judge.
-
The party who calls a witness examines first (chief), then the other party cross-examines, and finally, if necessary, re-examination follows.
-
-
Each witness is subject to cross-examination (§ 145 BSA).
-
Court control (§ 158–159 BSA)
– The court may forbid indecent, scandalous, insulting, or irrelevant questions.
– The court has discretion to decide relevancy and fairness. -
Test of credibility: Cross-examination is the most powerful instrument for detecting falsehood.
🔹 3. Kinds / Stages of Examination
| Stage | Conducted By | Objective |
|---|---|---|
| Examination-in-Chief | Party who calls the witness | To elicit relevant facts supporting the party’s case. |
| Cross-Examination | Adverse (opposite) party | To test truth, accuracy, credibility, and discover inconsistencies. |
| Re-Examination | Party who called the witness | To clarify doubts or explain matters raised in cross-examination. |
🔹 4. Examination-in-Chief (Section 142–143, BSA)
⚖️ Meaning:
The examination of a witness by the party who calls him.
🎯 Object:
To bring out the relevant facts in support of the case of the party calling the witness.
📜 Rules:
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Leading questions are not ordinarily allowed (§ 142 BSA).
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Leading question means a question which suggests the answer expected.
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Example (not allowed): “You saw A stabbing B, didn’t you?”
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Example (allowed): “Where were you at 7 PM on that day?”
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Leading questions may be permitted only:
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On introductory matters, or
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With the permission of the court, if not objected by the opposite side.
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Witness must depose from personal knowledge — not hearsay.
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Documents can be proved through the witness during examination-in-chief.
📚 Case Law: Ram Chander v. State of Haryana (1981 AIR SC 1036)
Judgment: The purpose of examination-in-chief is to let the witness tell his story freely and clearly before cross-examination begins.
Implication: No suggestion or coaching allowed.
🔹 5. Cross-Examination (Sections 144–157, BSA)
⚖️ Meaning:
Cross-examination is the interrogation of a witness by the adverse party after the examination-in-chief.
🎯 Object:
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To test the truthfulness and reliability of the witness,
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To detect falsehood or exaggeration,
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To bring out contradictions, prior inconsistent statements, motives, and biases.
⚖️ Right to Cross-Examine:
Every party has the absolute right to cross-examine any witness who has given evidence against him (§ 145 BSA).
📜 Rules and Procedure of Cross-Examination:
| Rule / Principle | Explanation | Statutory Support |
|---|---|---|
| 1. Leading questions permitted | Cross-examiner may put leading questions freely. | § 142–143 BSA |
| 2. Questions testing veracity or credibility allowed | Cross-examiner may ask questions to test the accuracy, character, and impartiality of witness. | § 151 BSA |
| 3. Witness may be contradicted | By showing prior inconsistent statements or contradictions. | § 155 BSA |
| 4. Questions may relate to previous conduct or bias | Example: “Did you ever quarrel with the accused?” | § 151–153 BSA |
| 5. Improper or scandalous questions prohibited | Court may forbid indecent, insulting, or irrelevant questions. | § 158–159 BSA |
| 6. Cross-examination must confine to relevant facts | However, some liberty is given to test credibility. | § 150–151 BSA |
📚 Case Law: State of Rajasthan v. Ani @ Hanif (1997 6 SCC 162)
Judgment:
Cross-examination is a matter of right. Its object is to test credibility and extract truth.
If a witness is not cross-examined on a point, the court may presume that the statement stands admitted.
Implication:
→ Denial to cross-examine violates principles of natural justice.
📚 Case Law: Sat Paul v. Delhi Administration (1976 AIR SC 294)
Judgment:
If a witness turns hostile, his previous statement can be used to contradict him under § 155 BSA (old § 154 IEA).
Implication:
→ Hostile witness may still give valuable corroborative evidence.
📚 Case Law: Laxmibai v. Bhagwantbuva (2013 4 SCC 97)
Judgment:
Every material fact must be put to the witness during cross-examination if the opposite party wishes to challenge it.
Implication:
→ Failure to cross-examine on a material point amounts to acceptance of that statement.
🔹 6. Re-Examination (Section 156–157 BSA)
⚖️ Meaning:
Re-examination is the questioning of a witness by the party who called him, after the cross-examination is over.
🎯 Object:
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To explain matters brought out during cross-examination,
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To remove ambiguity or restore credibility.
📜 Rules:
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Re-examination must confine itself to matters raised in cross-examination.
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New matters may be introduced only with permission of court.
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Leading questions are not allowed in re-examination.
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The opposite party has the right to further cross-examine if new matters are introduced. (§ 157 BSA)
📚 Case Law: Ghulam Rasool Khan v. Wali Khan (AIR 1967 J&K 97)
Judgment:
Purpose of re-examination is not to repeat chief-examination, but to clarify doubtful points or correct misconceptions raised during cross-examination.
Implication:
→ It restores balance and fairness in the process.
🔹 7. Kinds of Questions Permitted in Each Type of Examination
| Type of Question | Permitted In | Example | Legal Position |
|---|---|---|---|
| Leading Question | Cross-examination; limited use in chief with permission | “You were at the spot, right?” | § 142–143 BSA |
| Testing Credibility / Character | Cross-examination | “Have you ever been convicted?” | § 151 BSA |
| Contradictory Question | Cross-examination | “Didn’t you tell the police something different?” | § 155 BSA |
| Explanatory Question | Re-examination | “Can you clarify what you meant when you said X?” | § 157 BSA |
| Insulting / Indecent Question | ❌ Prohibited | “You are a liar, aren’t you?” | § 158–159 BSA |
🔹 8. Hostile Witness (Section 155 BSA)
A hostile witness is one who deviates from his earlier statement or supports the opposite side.
The party who called him may, with the court’s permission, cross-examine its own witness.
Case Law: Sat Paul v. Delhi Administration (1976) —
A hostile witness does not become unreliable as a whole; the portion consistent with other evidence may still be relied upon.
🔹 9. Court’s Control Over Examination
Sections 158–159 (BSA) empower the Judge to:
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Forbid indecent, scandalous, or irrelevant questions.
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Protect witnesses from harassment.
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Allow recall or re-examination when necessary in the interest of justice.
Case Law: State of Rajasthan v. Ani @ Hanif (1997) — Court has duty to ensure that cross-examination remains fair and not abusive.
🔹 10. Summary Table
| Stage | Conducted By | Leading Questions | Purpose / Objective | Scope of Questions |
|---|---|---|---|---|
| Examination-in-Chief | Party who calls the witness | ❌ Not allowed (except formal matters) | To prove relevant facts supporting the case. | Only relevant facts; no suggestions. |
| Cross-Examination | Adverse party | ✅ Allowed freely | To test veracity, detect falsehood, bring contradictions. | May extend to credibility, bias, previous conduct. |
| Re-Examination | Party who called witness | ❌ Not allowed | To explain or clarify answers from cross-exam. | Limited to issues raised in cross. |
🔹 11. General Principles Summarized
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Witness examination must follow the statutory order: chief → cross → re-exam.
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Leading questions are generally prohibited in chief/re-exam but allowed in cross.
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Hearsay and irrelevant questions are excluded.
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Cross-examination is a matter of right; refusal violates natural justice.
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Re-examination ensures fairness and prevents distortion.
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Judge has supervisory power to regulate the manner and scope of examination.
🔹 12. Conclusion
The process of examining witnesses lies at the heart of a fair trial.
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Examination-in-chief unfolds the narrative;
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Cross-examination tests its truth;
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Re-examination clarifies confusion.
The Bhartiya Sakshya Adhiniyam 2023 retains these age-old safeguards but modernizes language and procedure, ensuring that truth emerges through fair questioning, not intimidation or manipulation.
Thus, the law upholds Jeremy Bentham’s principle:
“Witnesses are the eyes and ears of justice.”