Evidence Law Ultra-Specific .
1. FOUNDATIONAL DOCTRINE: RELEVANCY vs ADMISSIBILITY
Relevancy = Logical connection. Admissibility = Legal permission to put before court.
Everything relevant is not admissible, but everything admissible must be relevant. [Section 3 BSA].
Case Law: Ram Bihari Yadav v. State of Bihar (1998) 4 SCC 517
Fact in issue + Relevant fact distinction laid down. Court held relevancy is question of logic, admissibility is question of law.
2. RES GESTAE - Section 4 BSA [Old Sec 6 IEA]
Principle: Facts forming part of same transaction, though not in issue, are relevant if connected to make transaction intelligible.
Ultra-Specific Test (4 conditions):
- Same transaction
- Spontaneity (no fabrication)
- Contemporaneous
- Made by participant or bystander
Case Laws:
a) Gentela Vijayavardhan Rao v. State of AP (1996) 6 SCC 241 - Statement made by victim to bystander immediately after assault, before police arrival - Res gestae, admissible as spontaneous.
b) R v. Bedingfield (1879) - Classic English case - Woman coming out with throat cut saying "See what Bedingfield has done" - NOT res gestae because after transaction ended.
c) Ratten v. R (1971) UK - Phone call "Get me police, my husband will kill me" - Res gestae, spontaneous, allowed.
3. MOTIVE, PREPARATION, CONDUCT - Sec 7 BSA [Old Sec 8]
Previous and Subsequent Conduct relevant.
Case: State of Punjab v. Sucha Singh (2003) - Absconding after crime = relevant conduct showing guilty mind. But mere absconding not conclusive.
Motive:
Nathuni Yadav v. State of Bihar (1998) 9 SCC 238 - Motive is relevant but not essential. If direct evidence clear, motive loses importance. If circumstantial, motive is vital link.
4. ADMISSION vs CONFESSION - Sec 15-21 BSA [Old Sec 17-31]
Ultra-Specific Difference:
| Admission | Confession |
|---|---|
| Statement suggesting inference about fact in issue - Sec 15 BSA | Admission of guilt in criminal case - Sec 19 BSA |
| Can be used by anyone, civil/criminal | Only in criminal |
| Can be retracted but retraction goes to weight | Retracted confession needs corroboration |
| No bar of police officer | Bar of police officer, custody |
Case Laws:
a) Pakala Narayan Swamy v. Emperor AIR 1939 PC 47 - Definition of confession: Must either admit in terms offence or admit substantially all facts which constitute offence. Statement "I will show you where I hid dead body" - NOT confession, only admission, because does not admit killing.
b) Aghnoo Nagesia v. State of Bihar AIR 1966 SC 119 - Confession must be read as whole. If contains exculpatory + inculpatory parts, cannot split. Whole confessional FIR inadmissible if partly confessional.
c) State of UP v. Deoman Upadhyaya AIR 1960 SC 1125 - Section 27 BSA (Old 27 IEA) is exception to Sec 23 (Old 25-26). Even if confession to police, so much of information that leads to discovery of fact is admissible. Doctrine of Confirmation by subsequent discovery.
d) Pulukuri Kottaya v. Emperor AIR 1947 PC 67 - Leading case on Sec 27. Information + Discovery. Fact discovered must be relevant, must be discovered from information, accused must be in custody.
5. DYING DECLARATION - Sec 26(a) BSA [Old Sec 32(1)]
No oath, no cross-examination, still admissible - Exception to hearsay.
5 Golden Rules from Case Laws:
a) Khushal Rao v. State of Bombay AIR 1958 SC 22 - Dying declaration can be sole basis of conviction without corroboration if it inspires confidence.
b) Laxman v. State of Maharashtra (2002) 6 SCC 710 - If victim in fit state of mind certified by doctor, not necessary that Magistrate records it. Police or doctor can record.
c) Paparambaka Rosamma v. State of AP (1999) 7 SCC 695 - If dying declaration not certified by doctor about mental fitness, it is doubtful.
d) State of UP v. Veer Singh (2004) 10 SCC 584 - Multiple dying declarations - If inconsistent, court must see which is truthful. Earlier one generally more reliable unless tutored.
e) Paniben v. State of Gujarat (1992) 2 SCC 474 - Dying declaration must be voluntary, not prompted.
BSA Change: Sec 26(a) now includes statement made by person who is not dead but cannot be found or incapable - expanded scope.
6. EXPERT EVIDENCE - Sec 39-45 BSA [Old Sec 45-51]
When court needs help: Foreign law, science, art, handwriting, fingerprint.
Ultra-Specific:
- Expert is not witness of fact, but witness of opinion.
- Expert must be skilled, not necessarily qualified degree.
- Court not bound by expert opinion - must check reasoning.
Case Laws:
a) Murari Lal v. State of MP (1980) 1 SCC 704 - Handwriting expert opinion - Court can compare itself under Sec 67 BSA (Old 73). Expert opinion is not conclusive.
b) State of HP v. Jai Lal (1999) 7 SCC 280 - Expert must give reasons. Bare ipse dixit not acceptable. Must explain science.
c) Malay Kumar Ganguly v. Sukumar Mukherjee (2009) 9 SCC 221 - Medical negligence - Supreme Court relied on expert evidence + Bolam test. Expert evidence must be tested on anvil of logic.
d) Forensic - Selvi v. State of Karnataka (2010) 7 SCC 263 - Narco-analysis, polygraph, BEAP involuntary = Violates Article 20(3). Cannot be done without consent. Even with consent, result not substantive evidence, only corroborative.
7. ELECTRONIC EVIDENCE - Sec 61-63 BSA [Old 65A, 65B] - MOST IMPORTANT FOR BSA 2023
BSA makes huge change.
Old Law (Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1): Certificate under 65B(4) mandatory for electronic record. Oral evidence cannot replace.
New Law BSA:
Sec 61: Electronic record = Document.
Sec 62: Admissibility of electronic records - No need to prove original if secondary evidence rules followed.
Sec 63: Certificate required - Now under Sec 63(4) - Similar to 65B but more detailed. Must include:
- Hash value,
- Details of device,
- Certificate by person in charge.
Case Laws still relevant:
a) Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473 - Electronic record without 65B certificate inadmissible.
b) Arjun Panditrao Khotkar (2020) - Overruled Shafhi Mohammad (2018). Clarified 65B certificate mandatory even if original device produced. Two exceptions: If owner himself deposes, or if device not in human control.
c) Ravinder Singh v. State of Punjab 2022 - Call Detail Records (CDR) without certificate = inadmissible.
Ultra-Specific for BSA Exam: Under BSA Sec 63, certificate can be given by expert under Sec 39 also. Chain of custody crucial.
8. HEARSAY RULE & EXCEPTIONS
General Rule: Hearsay is inadmissible - Sec 55 BSA.
Exceptions (8): Res gestae (Sec 4), Admission/Confession, Dying Declaration (Sec 26), Entry in course of business (Sec 26(b)), Public records, Expert opinion, Family custom.
Case: Kalyan Kumar Gogoi v. Ashutosh Agnihotri (2011) 2 SCC 532 - Newspaper report is hearsay, not admissible as proof of contents, only to show that statement was made.
9. BURDEN OF PROOF - Sec 104-115 BSA [Old 101-114A]
Sec 104: Whoever desires court to give judgment as to legal right must prove.
Sec 106: Burden on person who has special knowledge.
Key Case Laws:
a) Shambu Nath Mehra v. State of Ajmer AIR 1956 SC 404 - Sec 106 (Old 106) - If husband and wife last seen together, husband must explain what happened to wife - special knowledge.
b) State of Maharashtra v. Wasudeo Ramchandra Kaidalwar (1981) 3 SCC 199 - For corruption under Prevention of Corruption Act, burden shifts - Accused must explain disproportionate assets.
c) KM Nanavati v. State of Maharashtra AIR 1962 SC 605 - Burden for private defence - Accused only needs to show preponderance of probability, not beyond reasonable doubt.
10. PRESUMPTIONS - Sec 116-123 BSA
May Presume, Shall Presume, Conclusive Proof.
Case: Sodhi Transport Co. v. State of UP (1986) 2 SCC 486 - Difference explained. "Shall presume" = court must presume unless disproved.
Sec 118 BSA - Dowry Death Presumption (Old 113B): If woman dies within 7 years of marriage due to cruelty soon before death for dowry - Court SHALL presume dowry death.
Case: State of Punjab v. Iqbal Singh (1991) 3 SCC 1 - Ingredients for 113B.
Sec 119 BSA - Rape Presumption (Old 114A): If victim says no consent, court shall presume no consent if sexual intercourse proved and victim in custody etc.
Case: Tukaram v. State of Maharashtra (1979) 2 SCC 158 - Mathura Rape Case - Led to amendment of 114A. Supreme Court acquitted due to no injuries, outcry. Public outcry led to presumption law.
11. ESTOPPEL - Sec 121-123 BSA [Old 115-117]
Case: Union of India v. Godfrey Philips (1985) 4 SCC 369 - Promissory estoppel - Government can be estopped if promise made, acted upon, equity demands.
12. EXAMINATION OF WITNESSES - Sec 142-168 BSA
Leading Questions: Sec 146 - Only in cross-examination, not in examination-in-chief except with permission.
Hostile Witness: Sec 157 - Party can cross-examine own witness if hostile. Declaration of hostile does not mean whole testimony washed off.
Case: Gura Singh v. State of Rajasthan (2001) 2 SCC 205 - Even if witness declared hostile, that part which supports prosecution can be relied if corroborated.
Cross-examination on Previous Statement - Sec 148 (Old 145): If want to contradict witness with his previous statement, must show him that statement.
Case: Tahsildar Singh v. State of UP AIR 1959 SC 1012 - Omissions amount to contradictions if expected to be stated.
BSA 2023 - Major Changes to Remember for Ultra-Specific Answer:
- Oral evidence can be electronic (Sec 2(1)(e))
- Joint trial expanded
- Secondary evidence now includes oral and written admissions, plus expert certificate
- Confession to police via audio-video electronic means now admissible if recorded? Under Sec 23 BSA proviso - If confession recorded by audio-video means, it can be considered (Big change from old Sec 25 total ban).
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