CS Executive · Jurisprudence, Interpretation and General Laws

Law relating to Evidence: formula sheet

Full chapter guide

Key formulas

Fact (Section 2(1)(f)): Fact = anything perceivable by the senses + any mental condition of which a person is conscious; Includes intention, opinion, good or bad faith, and that someone said certain words.
Evidence (Section 2(1)(e)): Evidence = oral evidence (statements before the Court) + documentary evidence (documents produced for inspection); Both include electronic forms: statements given electronically and electronic or digital records.
Proved: Proved = Court believes the fact exists, or finds its existence so probable that a prudent man would act on it; Disproved is the mirror image for non-existence.
Not proved: Not proved = neither proved nor disproved; It is a separate third state, not the same as disproved.
May presume: May presume = Court may treat the fact as proved until disproved, or may call for proof; Discretionary.
Shall presume: Shall presume = Court must treat the fact as proved until disproved; Mandatory, but rebuttable by evidence.
Conclusive proof: Conclusive proof = on proof of one fact, Court regards the other as proved and allows no evidence to disprove it; Not rebuttable. Example: Section 116 legitimacy, subject to its own no-access condition.
Application (Section 1): Applies to all judicial proceedings in or before any Court, including Courts-martial; not to affidavits or arbitrator proceedings; In force from 1 July 2024.
Section 3: the basic rule: Evidence = facts in issue + facts declared relevant by the Adhiniyam, and no others; The Explanation bars proof of a fact that the law of civil procedure disentitles a person to prove. Illustration (b): a bond not produced at the first hearing can be produced later only as the Code of Civil Procedure, 1908 allows.
Section 4: same transaction (res gestae): Fact connected with a fact in issue or relevant fact so as to form part of the same transaction = relevant, at any time and place; The test is connection with the transaction, not same time or place.
Section 6(1): motive and preparation: Fact showing or constituting motive or preparation for a fact in issue or relevant fact = relevant; Example: A procured poison similar to that given to B before B's death.
Section 6(2): conduct: Conduct that influences or is influenced by a fact in issue or relevant fact = relevant, whether previous or subsequent; Covers conduct of a party, its agent, and the person against whom an offence is the subject of the proceeding.
Section 6, Explanations 1 and 2: Statements are not conduct unless they accompany and explain acts other than statements; a statement made to or in the presence and hearing of a person, which affects his conduct, is relevant; Explanation 1 does not affect relevancy of statements under other sections.
Section 7: explaining facts: Facts that explain or introduce, support or rebut an inference, establish identity, fix time or place, or show relation of parties = relevant so far as necessary; The words "in so far as they are necessary" limit the rule.
Section 141: admissibility decided by the Judge: Judge admits evidence if the fact, if proved, would be relevant, and not otherwise; Under section 141(2), if evidence is admissible only on proof of another fact, that fact is proved first, unless the party undertakes to prove it and the Court is satisfied.
Section 37: other judgments: Judgments, orders and decrees other than those in sections 34, 35 and 36 are irrelevant, unless their existence is a fact in issue or relevant under another provision; Illustration (c): a decree for possession is relevant to show motive for the murder of the decree-holder.
Admission by party or agent: Statement by party / authorised agent = admission (Section 16(1)); The Court must regard the agent as expressly or impliedly authorised.
General rule on proof of admissions: Provable AGAINST the maker or his representative in interest; NOT by or on behalf of the maker (Section 19); Three exceptions: Section 26 type statements, state of mind or body with conduct, relevant otherwise than as admission.
Statements of persons whose position must be proved: Admission if relevant against them and made while they held the position or liability (Section 17); Example: C's statement that he owed rent, used against collector A.
Confession to police: No confession to a police officer can be proved against an accused (Section 23(1)); Applies to any offence.
Confession in police custody: Not provable unless made in the immediate presence of a Magistrate (Section 23(2)); Custody is the test, not a formal arrest.
Discovery proviso: Information leading to discovery of a fact: only the part that relates distinctly to the fact discovered can be proved; Applies whether or not the information is a confession.
Dying declaration: Statement by a person on the cause or circumstances of his death is relevant when he cannot be called; Cite the section only if you are sure of it from the Act.
Oral evidence must be direct (section 55): Seen fact → witness who saw it; heard fact → witness who heard it; other sense → witness who perceived it; opinion → the person holding it; Two provisos: a treatise on expert opinion may be proved by production if the author is dead, cannot be found, is incapable, or cannot be called without unreasonable delay or expense. For a material thing other than a document, the Court may require its production for inspection.
Oral evidence scope (section 54): All facts, except the contents of documents, may be proved by oral evidence; Contents of documents go through sections 56 and 59.
Proof of documents (sections 56 and 59): Contents proved by primary or secondary evidence; documents proved by primary evidence except in the cases mentioned; Primary is the rule. Secondary is the exception.
Primary evidence (section 57): Primary evidence = the document itself produced for inspection of the Court; Explanations cover documents in several parts, counterparts, uniform-process copies and electronic records.
Secondary evidence (section 58): Certified copies; accurate mechanical copies and copies compared with them; copies made from or compared with the original; counterparts against non-executing parties; oral account by one who saw it; oral admissions; written admissions; expert on voluminous accounts; An oral account of a copy, or of a photograph or machine-copy, is not secondary evidence of the original (illustration (d)).
Cases for secondary evidence (section 60): (a) original with opponent, person out of reach of process, or person legally bound to produce it, who does not produce it after notice; (b) written admission of contents; (c) original destroyed or lost, or cannot be produced in reasonable time, not by own default; (d) not easily movable; (e) public document under section 74; (f) certified copy permitted by law; (g) numerous accounts, general result; Explanation: in (a), (c), (d) any secondary evidence is admissible; in (b) the written admission; in (e) and (f) only a certified copy; in (g) evidence of a skilled person who examined them.
Notice to produce (section 64): Notice needed for section 60(a) cases, unless dispensed with; No notice if the document is itself a notice, the adverse party must know he will have to produce it, he got it by fraud or force, he or his agent has it in Court, he admitted its loss, or the holder is out of reach of the Court's process. The Court may also dispense with it.
Exclusion of oral by documentary evidence (section 94): Where terms are reduced to a document, only the document, or admissible secondary evidence of it, may prove them; Exceptions: public officer's appointment, and wills admitted to probate. Oral evidence of other facts mentioned in the document is allowed.
Electronic record as a document: Section 2(1)(d): document includes electronic and digital records; Emails, server logs, messages, websites, location data and voice mail on digital devices are covered.
Non-discrimination rule: Section 61: no denial of admissibility only because the record is electronic or digital; Subject to section 63. Same legal effect, validity and enforceability as other documents.
Mode of proof: Section 62: contents of electronic records may be proved in accordance with section 63; Section 63 is the working provision for admissibility.
Admissibility of computer output: Section 63(1): computer output is deemed a document and admissible without further proof or production of the original, if the conditions are satisfied; Applies to printouts and copies on optical, magnetic or semiconductor media.
Four conditions: Section 63(2)(a)-(d): regular use; regular feeding of information; proper operation (or no effect on accuracy); output derived from information fed in the ordinary course; These relate to the computer or communication device and the output.
Several devices as one: Section 63(3): all devices used in standalone mode, system, network, computer resource or through an intermediary are treated as one device; Useful where records pass through many systems.
Certificate: Section 63(4): certificate submitted along with the record at each instance, signed by a person in charge and an expert, in the Schedule form; Matters may be stated to the best of knowledge and belief.
Primary evidence of electronic records: Section 57, Explanations 4-7; Each file or automated storage, including temporary files, is primary evidence. A record from proper custody is primary evidence unless disputed.
Presumptions: Section 86(1): Court shall presume a secure electronic record is unaltered since the time its secure status relates to, unless the contrary is proved; Section 86(2) covers secure electronic signatures. No presumption of authenticity for other records or signatures.
General burden of proof: Burden lies on the person who asserts facts on which he wants judgment (Section 104); A person bound to prove a fact is said to carry the burden of proof on it.
Test for who bears the burden: Burden lies on the party who would fail if no evidence were given on either side (Section 105); Use this as the first test in every problem. Illustration: where execution of a bond is admitted and the defendant pleads fraud, the burden is on the defendant.
Accused and exceptions: Burden of proving a General Exception, special exception or proviso is on the accused; the court shall presume its absence (Section 108); The prosecution still proves the offence. The accused proves only the exception he pleads.
Ownership of possessed thing: Where a person is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner (Section 113); The burden of proving non-ownership lies on the person who says the possessor is not the owner.
May presume: Court may regard fact as proved unless and until disproved, or may call for proof (Section 2(1)(h)); The court has a discretion between the two courses.
Shall presume: Court shall regard fact as proved unless and until it is disproved (Section 2(1)(l)); Mandatory: the court must treat the fact as proved until it is disproved. Conclusive proof under Section 2(1)(b) is different, as no evidence is allowed to disprove the fact.
Special presumptions: Dowry death (Section 118); absence of consent in rape prosecution (Section 120); Both are 'shall presume' provisions with conditions that must first be shown.
Public and private documents: Section 74 lists public documents; all others are private. Section 77 lists how certain official documents are proved; Public documents include acts or records of acts of sovereign authority, official bodies, tribunals and public officers.
Estoppel: Declaration, act or omission that intentionally leads another to believe a thing and act on that belief = the person cannot deny its truth against that other person or his representative; Applies between the parties or their representatives. The rule is stated generally here; learn the section number from the Act.
General competency (s. 124): All persons competent, unless the Court considers they cannot understand questions or give rational answers; Causes: tender years, extreme old age, disease of body or mind, or any other cause of the same kind. Unsound mind alone does not disqualify.
Spouses (s. 126): Civil: parties and their spouses are competent. Criminal: the accused's spouse is a competent witness; Competency only. It does not say a spouse can be forced to testify.
Advocate privilege (s. 132(1)): No disclosure without the client's express consent: communications, document contents or condition, advice; Must be in the course and for the purpose of professional service. Continues after service ends.
Exceptions to privilege (proviso to s. 132(1)): (a) communication in furtherance of any illegal purpose; (b) fact observed showing crime or fraud committed since service began; Under s. 132(2), it is immaterial whether the client directed the advocate's attention to the fact.
Who is covered (s. 132(3)): Interpreters, and clerks or employees of advocates; Same protection as the advocate.
Waiver (s. 133): Client giving evidence = no waiver. Client calling advocate as witness = waiver only if the client questions the advocate on otherwise undisclosable matters; Do not say that calling the advocate always waives privilege.
Affairs of State (s. 129): No evidence from unpublished official records on affairs of State without permission of the head of the department concerned; The officer may give or withhold permission as they think fit.
Order of production of witnesses (s.140): Order = law and practice of civil/criminal procedure; if none, Court's discretion; The Adhiniyam itself does not fix the order. It defers to procedure law.
Stages of examination (ss.142-143): Examination-in-chief → Cross-examination (if adverse party desires) → Re-examination (if calling party desires); Cross and re-examination are optional. Each depends on the party wanting it.
Scope of cross-examination (s.143(2)): Must relate to relevant facts; need not be confined to facts in examination-in-chief; Cross-examination is wider than chief.
Scope of re-examination (s.143(3)): Directed to explaining matters referred to in cross-examination; new matter only with Court's permission, then further cross allowed; Re-examination is not a chance to repeat the case.
Leading questions (s.146): Chief/re-examination: not if objected to, except with Court's permission. Court shall permit on introductory, undisputed or already proved matters. Cross: allowed; The bar applies only on objection by the adverse party.
Impeaching credit (s.158): (a) witnesses who believe him unworthy of credit; (b) proof of bribery or corrupt inducement; (c) former inconsistent statements; Done by the adverse party, or by the calling party with the Court's consent.
Contradicting answers on character (s.156): No evidence to contradict answers that only shake credit; Exception 1: previous conviction; Exception 2: impartiality; If the witness answers falsely, he may be charged with giving false evidence.
Improper admission or rejection (s.169): No new trial or reversal if, without the objected evidence, sufficient evidence remains, or the rejected evidence would not have changed the decision; The mistake alone is not a ground.

Quick revision

Section 3: evidence may be given of facts in issue and relevant facts, and of no others.
Fact includes anything perceived by the senses and any mental condition a person is conscious of.
Proved: the court believes the fact exists or thinks it so probable that a prudent man would act on it.
Disproved is the mirror image. Not proved means neither proved nor disproved.
Shall presume: the court must regard the fact as proved unless and until it is disproved. May presume: the court may regard it as proved or call for proof.
Section 54: all facts, except the contents of documents, may be proved by oral evidence.
Document includes electronic and digital records, such as emails, messages and server logs.
Section 62: the contents of electronic records are proved in accordance with section 63.
Section 60 lists when secondary evidence is allowed, such as when the original is lost or destroyed without the party's default.
Under section 60, for a public document or a certified copy case, only a certified copy is admissible, not other secondary evidence.
Section 107: whoever wants to give evidence of a fact must prove any fact needed to make that evidence admissible.
Section 129: no evidence from unpublished official records on affairs of State without the permission of the head of the department concerned.

Common mistakes

Saying that 'shall presume' means the fact cannot be disproved. Fix: Remember the statutory words: regarded as proved 'unless and until it is disproved'. Only conclusive proof bars disproving evidence.
Treating 'not proved' and 'disproved' as the same. Fix: Disproved needs belief in non-existence or a prudent-man view that it does not exist. Not proved is the middle state where the fact is neither proved nor disproved.
Treating relevancy and admissibility as the same thing Fix: Say relevancy is the legal connection with the issue, while admissibility is the court's decision to receive the evidence under section 141. Relevant facts may still be barred by another rule.
Saying section 4 needs the same time and place Fix: State that section 4 makes facts relevant whether they occurred at the same time and place or at different times and places, if they form part of the same transaction.
Saying a confession to a police officer is admissible if it is voluntary. Fix: Section 23(1) bars proof of any confession to a police officer against the accused. Voluntariness does not change this.
Ignoring the Magistrate exception for custodial confessions. Fix: Under Section 23(2), a confession in custody can be proved if made in the immediate presence of a Magistrate.
Treating a photocopy or any copy as primary evidence. Fix: Primary evidence is the document itself. Only uniform-process copies are primary of each other, not of their common original.
Allowing any kind of secondary evidence in every section 60 case. Fix: In clauses (e) and (f) only a certified copy is admissible. In (b) it is the written admission. In (g) it is the evidence of a skilled examiner.
Saying an electronic record is admissible automatically because of section 61. Fix: Section 61 is subject to section 63. Always add the conditions and the certificate.
Forgetting the certificate, or treating it as needed once per case. Fix: Section 63(4) requires a certificate along with the record at each instance it is submitted for admission.

Exam tips

Learn the Section 2(1) definitions almost word for word. Examiners reward accurate statutory language.
Always mention electronic and digital records when defining document and evidence.
In difference questions, give the Court's power, whether rebuttal is allowed, and one illustration.
Use the Bharatiya Sakshya Adhiniyam, 2023 throughout, with the 1 July 2024 commencement if the question asks about application.
In problem questions, label each fact as fact in issue, relevant fact or explanatory fact, then conclude.
Start every answer with section 3, then name the specific section that makes the fact relevant.
Write the exact conditions: part of the same transaction (section 4), previous or subsequent conduct (section 6(2)), necessary for the purpose (section 7).
Always mention Explanation 1 to section 6 when a statement is involved.