Unit-1

1. Introduction to evidence law

📘 INTRODUCTION TO EVIDENCE LAW IN INDIA (Bhartiya Sakshya Adhiniyam, 2023)

1. Overview of the Bhartiya Sakshya Adhiniyam, 2023

The Bhartiya Sakshya Adhiniyam, 2023 (BSA 2023) is a modernised legislation that replaces the
Indian Evidence Act, 1872, aiming to adapt to technological advancements, digital records, and the
needs of a 21st-century justice system.

It is part of a trio of new criminal laws introduced in 2023, alongside:

 Bharatiya Nyaya Sanhita, 2023 (replacing IPC)

 Bharatiya Nagarik Suraksha Sanhita, 2023 (replacing CrPC)

The new Evidence Act retains many foundational principles of the 1872 law while introducing
changes to reflect contemporary realities, especially in electronic and digital evidence.

2. Meaning and Purpose of Evidence Law

Evidence law governs what information can be presented in court, how facts are to be proved, and
which facts are relevant and admissible. The aim is to ensure fair trials by admitting only reliable,
relevant, and legally acceptable evidence.

3. Sources of Evidence Law

 Statute: Bhartiya Sakshya Adhiniyam, 2023

 Judicial Precedents: Interpretations of the law by courts

 Constitution of India: Especially Articles 20, 21, and 22 (fair trial rights)

 General Principles of Justice and Equity

4. Structure of the Bhartiya Sakshya Adhiniyam, 2023

 Total Sections: 170

 Chapters: 11 chapters covering general principles, relevance, admissions, confessions,

documents, burden of proof, presumptions, witnesses, and more.

5. Key Principles under BSA 2023

a. Relevance of Facts

 Only relevant facts are admissible (Sections 3–29)

 Relevance is determined by logical connection to the matter in issue.

b. Facts Which Need Not Be Proved

 Judicially noticeable facts

 Admitted facts

 These are considered proved without evidence being led (Section 56 onwards).

c. Admissions and Confessions

 Admissions (Sections 14–23): Can be used against the person making them.

 Confessions (especially in criminal law): Must be voluntary; confessions to police are

inadmissible unless made before a magistrate (Section 24–30).

d. Statements by Persons Who Cannot Testify (Hearsay Exceptions)

 Dying declarations

 Entries in books of account

 Statements in public documents

(Sections 33–39)

6. Documentary and Electronic Evidence

a. Documentary Evidence (Sections 61–90)

 Primary evidence: Original documents.

 Secondary evidence: Copies or certified reproductions, admissible under certain conditions.

b. Electronic Evidence

 Modern provisions now clearly define:

o Electronic records (emails, texts, logs, etc.)

o Presumptions regarding digital signatures, blockchain records, and secure

electronic records

o Use of digital devices, cloud data, and metadata in trials

 Sections 61–90 focus heavily on admissibility, verification, and authenticity of electronic

evidence.

c. Certificates under Section 65B (Now Section 63 in BSA 2023)

 Mandatory for admissibility of electronic records.

 Must be issued by a person in control of the system generating the data.

7. Burden of Proof and Presumptions

 General Rule: Burden lies on the party who asserts the fact (Sections 104–114).

 Presumptions:

o Presumption of legitimacy (birth during wedlock)

o Presumption of official acts being done regularly

o Special presumptions for electronic records and communications

8. Witnesses and Examination

 Rules on who can be a witness, and how testimony must be recorded (Sections 118–165).

 Cross-examination and re-examination are essential to test credibility.

 Protection for vulnerable witnesses: Provisions for video conferencing, closed-door

testimony, etc.

9. Comparison with Indian Evidence Act, 1872

Aspect Indian Evidence Act, 1872 Bhartiya Sakshya Adhiniyam, 2023

Total Sections 167 170

Electronic Evidence Limited, outdated Updated, digitally integrated

Terminology Colonial era Modern, simplified

Technological Adaptation Minimal Strong (blockchain, AI, metadata)

Structure Slightly scattered More streamlined and topical

✅ Summary

The Bhartiya Sakshya Adhiniyam, 2023 is a comprehensive and modernised statute that governs the
law of evidence in India, replacing the colonial-era Indian Evidence Act. The BSA 2023 retains core
principles such as relevance, admissibility, burden of proof, and examination of witnesses, while
introducing robust frameworks for electronic evidence, digital records, and secure electronic
communication. Its forward-looking provisions accommodate technological advancements and
reflect the demands of a contemporary judicial process, promoting fairness, efficiency, and justice in
trials.

(A) Definition and scope of evidence

📘 DEFINITION AND SCOPE OF EVIDENCE (As per Bhartiya Sakshya Adhiniyam, 2023)
🔍 1. Definition of Evidence

Under Section 2(d) of the Bhartiya Sakshya Adhiniyam, 2023, “evidence” is defined as:

“Evidence” includes—

1. All statements which the Court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry (oral evidence);

2. All documents, including electronic or digital records, produced for the inspection of the
Court (documentary evidence).

✅ Key Point: The term evidence under BSA 2023 explicitly includes electronic and digital records,
unlike the earlier Indian Evidence Act, 1872, which had more ambiguous provisions for modern data
forms.

📘 DEFINITIONS UNDER BHARTIYA SAKSHYA ADHINIYAM, 2023 (Section 2)

🔑 Section 2 – Definitions

Clause Term Definition (Simplified)

Refers to all judges and magistrates, and includes all persons legally
(a) Court
authorized to take evidence (e.g., commissions).

Conclusive When a fact is declared by the Act to be conclusively proved, the court must
(b)
Proof accept it as proved, and no evidence to the contrary is allowed.

Any matter expressed or described on any substance (physical or digital) by

(c) Document means of letters, figures, marks, etc. Includes electronic/digital records like
emails, images, video files.

Includes: 1️⃣ Oral evidence (witness statements in court) and 2️⃣

(d) Evidence
Documentary evidence (including electronic/digital records).

Anything that can be perceived by the senses (seen, heard, felt, etc.), or any
(e) Fact
mental condition of which a person is conscious.

Any fact that is necessary to prove or disprove in order to decide the

(f) Fact in Issue
rights/liabilities of the parties.

May Court has discretion to presume a fact is true unless disproved, or it may
(g)
Presume require proof.

Shall Court must presume the fact is true unless disproved (mandatory
(h)
Presume presumption, but rebuttable).

A fact is said to be proved when, after considering the evidence, the court
(i) Proved
believes it to exist or regards its existence as probable.

When the court believes the fact does not exist, or regards its non-existence
(j) Disproved
as probable.
Clause Term Definition (Simplified)

(k) Not Proved When a fact is neither proved nor disproved.

Has the same meaning as assigned under Article 1 of the Constitution of

(l) India
India.

Electronic Defined under the IT Act, 2000 – includes data, databases, images, audio,
(m)
Record video, emails, digital signatures, etc.

📘 Scope of Evidence in the Bhartiya Sakshya Adhiniyam, 2023 (BSA 2023)

The scope of evidence under the Bhartiya Sakshya Adhiniyam, 2023 refers to the extent,
applicability, and content of what is considered evidence in legal proceedings and how it is to be
presented and evaluated in a court of law. The BSA 2023 replaces the colonial-era Indian Evidence
Act, 1872 and introduces a modern, digital-friendly, and constitutionally aligned framework.

✅ Key Aspects of the Scope of Evidence under BSA 2023

1. Applicability

 Applies to all judicial proceedings in courts of law.

 Covers both civil and criminal cases.

 Also applicable to tribunals and quasi-judicial bodies, unless excluded.

 Not applicable to:

o Affidavits presented to courts.

o Proceedings before arbitrators (unless specified otherwise).

2. Types of Evidence Recognized

The BSA 2023 recognizes and governs:

 Oral evidence – Statements made by witnesses under oath (Section 55).

 Documentary evidence – Includes documents in physical and digital formats (Sections 59–
61).

 Electronic evidence – Emails, CCTV, social media content, metadata, cloud storage, etc.
(Sections 63–66).

👉 Emphasis on electronic and digital records marks a significant expansion compared to the Indian
Evidence Act, 1872.
3. What Can Be Proved

The BSA governs the admissibility and proof of:

 Facts in issue – Facts directly related to the matter in dispute.

 Relevant facts – Facts that are logically or legally connected to the fact in issue.

 Motive, conduct, preparation, confessions, admissions, expert opinion, etc.

4. Standards and Principles Covered

 Relevance: Only facts relevant to the case are admissible.

 Admissibility: Not all relevant facts are admissible; legal filters apply.

 Modes of Proof:

o Oral testimony

o Documentary proof

o Digital and electronic formats

 Presumptions:

o May presume, shall presume, and conclusive proof are clearly defined and
differentiated (Section 2).

5. Technological and Constitutional Adaptability

 Fully integrates Information Technology Act, 2000 for digital records.

 Safeguards fundamental rights like:

o Protection against self-incrimination (Article 20(3))

o Right to fair trial (Article 21)

 Enables use of metadata, digital signatures, hash values, and blockchain evidence.

📊 Why This Matters (Significance of the Scope)

Area Contribution of BSA 2023

Digital Era Compatibility Recognizes and validates digital/electronic evidence

Procedural Efficiency Clarifies relevance, proof, and admissibility

Uniform Legal Standards Applies to all civil and criminal trials

Constitutional Alignment Respects individual rights and procedural fairness

Area Contribution of BSA 2023

Enhanced Judicial Tools Gives courts wider discretion with defined limitations

📝 Conclusion

The scope of evidence under the Bhartiya Sakshya Adhiniyam, 2023 is broad, inclusive, and
forward-looking. It encompasses all relevant and admissible materials—oral, documentary, and
electronic—used to establish facts in court. By updating the legal understanding of what constitutes
evidence and how it can be proved, the BSA 2023 ensures that India’s legal system is efficient,
technologically current, and constitutionally sound.

Would you like a one-page summary, flashcards, or MCQs on this topic for revision or study?

(B) Historical development and significance of evidence law

HISTORICAL DEVELOPMENT AND SIGNIFICANCE OF EVIDENCE LAW (With Reference to BSA 2023)

📜 1. Historical Development of Evidence Law

The law of evidence has evolved over centuries—from rudimentary oral traditions to the
sophisticated legal frameworks in place today. India’s evidence law journey can be broken down into
five key phases:

a. Ancient and Medieval Indian Traditions

 Dharmaśāstra texts like Manusmriti and Yajnavalkya Smriti laid early foundations of legal
and evidentiary principles.

 Modes of proof included:

o Witness testimony

o Documentary evidence (Lekhya)

o Divine ordeals and oaths (e.g., trial by fire or water)

 Emphasis was more on religious morality than legal codification.

b. Islamic and Mughal Period

 The Qazi courts followed principles of Sharia law.

  Importance was placed on oral testimony, especially from male Muslim witnesses.

 Non-Muslim testimonies were often undervalued.

 The system lacked uniformity, and evidence rules were community-specific and religiously
driven.

c. British Colonial Period – Codification Era

 The British recognised the need for a uniform legal system across India.

 Indian Evidence Act, 1872 (by Sir James Fitzjames Stephen) was enacted to:

o Replace diverse customs with one legal standard

o Apply equally to all persons regardless of religion or caste

 It was revolutionary for its time due to:

o Emphasis on relevance, admissibility, and fair procedure

o Introduction of cross-examination, burden of proof, privileges, and witness

competence

o Recognition of documentary evidence

✅ This Act governed Indian courts for over 150 years, becoming a cornerstone of Indian
jurisprudence.

d. Post-Independence Period (1947–2023)

 The Constitution of India (1950) upheld right to fair trial under Article 21.

 Judicial activism and interpretation by the Supreme Court and High Courts expanded
evidentiary protections (e.g., Narco tests, confessions, rights against self-incrimination).

 Electronic and digital developments highlighted gaps in the 1872 Act.

Examples:

 Section 65B for electronic records (introduced via IT Act, 2000) often caused confusion.

 Digital evidence authenticity and chain of custody were problematic under the old law.

e. Contemporary Reform – Bhartiya Sakshya Adhiniyam, 2023

 Drafted to address technological realities and simplify archaic language.

 Reflects a paradigm shift in approach: from colonial codification to indigenous, tech-savvy

legislation.

 Emphasizes:

o Electronic/digital evidence
 o Simplified and consistent rules

o Balanced justice for both victims and accused

o Increased admissibility standards with safeguards

⭐ 2. Significance of Evidence Law

The law of evidence is the bedrock of the judicial process, ensuring that truth emerges in a rational,
fair, and legally controlled manner.

a. Guarantees Fair Trials

 Prevents arbitrary decisions based on suspicion or bias.

 Defines how facts are proven, ensuring uniformity across courts.

b. Promotes Rule of Law

 Applies equally to all parties—accused, victim, state, and witnesses.

 Ensures due process and procedural fairness.

c. Filters Unreliable and Prejudicial Material

 Only relevant and admissible evidence is allowed.

 Helps judges focus on legally acceptable facts, excluding rumours or character

assassinations.

d. Adapts to Technological Change

 Modern evidence law (like BSA 2023) accommodates digital records, metadata, blockchain,
AI-generated content, etc.

 Establishes authenticity standards for electronic evidence, critical in cybercrime, financial

frauds, and modern litigation.

e. Protects Rights and Liberties

 Safeguards such as:

o Protection against self-incrimination (Article 20(3))

o Presumption of innocence

o Rules against compelled confessions

 Ensures justice is not only done but seen to be done.

f. Guides Judicial Decision-Making

 Offers a framework for reasoning based on facts and law.

 Standardises the process of reaching conclusions.

🧾 Conclusion

From ancient scriptures to digital forensics, the law of evidence has undergone a dramatic
evolution. The Bhartiya Sakshya Adhiniyam, 2023 marks a watershed moment in this journey,
aligning India's evidence framework with modern constitutional values, scientific methods, and
technological advancements. It not only simplifies the trial process but also fortifies the foundation
of India's justice system.

✅ Summary

The law of evidence in India has evolved through phases of religious, colonial, and constitutional
development, culminating in the enactment of the Bhartiya Sakshya Adhiniyam, 2023. This new law
replaces the colonial-era Indian Evidence Act, adapting the justice system to contemporary
challenges, especially those posed by digital technology and cyber evidence. Its significance lies in
ensuring fair trials, protecting individual liberties, and upholding the rule of law by defining what
can be legally proven in court and how. It represents both a historical milestone and a forward-
looking legal reform.

3. Types of Evidence

📘 TYPES OF EVIDENCE UNDER BHARTIYA SAKSHYA ADHINIYAM, 2023

The BSA 2023 classifies evidence into various types based on its form, source, and method of proof.
Understanding these types is essential to determine how facts can be legally established in court.

🔑 Section 2(d) – Definition of Evidence

As per Section 2(d) of BSA 2023, evidence includes:

1. Oral evidence – Statements made by witnesses in court.

2. Documentary evidence – Documents and electronic records produced before the court.

✅ Main Types of Evidence

1. 📣 Oral Evidence

(Sections 55–58)

 Statements made by witnesses in court under oath.

 Must be direct — based on personal knowledge (not hearsay).

🔹 Example: A witness testifying that they saw the accused commit a theft.

2. 📄 Documentary Evidence

(Sections 59–61)

 Any document, including written or printed materials, produced in court.

 Includes both primary and secondary documents.

🔹 Example: A signed contract, a will, or a cheque.

3. 💻 Electronic/Digital Evidence

(Sections 63–66)

 Recognized explicitly under BSA 2023.

 Includes emails, texts, CCTV footage, digital contracts, WhatsApp chats, metadata,
blockchain records, etc.

 Must meet authentication standards (e.g., digital signature, hash value).

🔹 Example: A video recording from a mobile phone presented as proof.

📂 Sub-Classification of Evidence

4. 📝 Primary Evidence

(Section 60)

 The original document or record itself.

 Always admissible unless excluded by law.

🔹 Example: Original signed lease agreement.

5. 📑 Secondary Evidence

(Section 61)

 Substitute for primary evidence when the original is unavailable.

 Includes:

o Certified copies

o Photocopies

o Oral accounts of document contents

🔹 Admissible only under specific conditions (e.g., original lost, destroyed, or in possession of the
opposite party).

6. 📢 Direct Evidence

 Directly proves a fact without inference.

 Usually eyewitness or firsthand account.

🔹 Example: A person testifying that they saw the accused commit the crime.

7. 🔍 Circumstantial Evidence (Indirect Evidence)

 Does not directly prove the fact but creates an inference.

 Relies on connected facts forming a chain.

🔹 Example: Fingerprints at the crime scene indicating the presence of the accused.

8. 📜 Real Evidence (Material Evidence)

 Physical objects produced in court.

 Seen and examined by the judge or jury.

🔹 Example: A knife used in a stabbing, clothes with blood stains.

9. Hearsay Evidence (Generally Inadmissible)

 Second hand information.

 The person testifying did not personally see or hear the fact.

🔹 Not admissible except under specific exceptions (e.g., dying declaration).

10. 🧠 Expert Evidence

(Section 45 of old law; carried forward)

 Opinions of persons with special knowledge or expertise.

 Useful in technical or scientific matters.

🔹 Example: Forensic report on handwriting or DNA.

11. 💬 Admission & Confession as Evidence

 Admissions (civil cases) and confessions (criminal cases) are statements made by parties
that may be used against them.
📌 Summary Table: Types of Evidence

Type Description Example

Oral Evidence Witness testimony Eyewitness account

Documentary Evidence Written/digital records Signed agreement

Electronic Evidence Digital data, emails, CCTV, chats WhatsApp chat log

Primary Evidence Original document Original deed

Secondary Evidence Copy or indirect version Photocopy of a contract

Direct Evidence Proves fact directly Seeing the act happen

Circumstantial Implies fact through related evidence Footprints at crime scene

Real Evidence Physical objects Murder weapon

Hearsay Evidence Secondhand account (generally inadmissible) "He told me he saw it"

Expert Evidence Technical/scientific opinion DNA report

Admission/Confession Statement against interest "I did it" (by accused)

✅ Conclusion

Under the Bhartiya Sakshya Adhiniyam, 2023, the types of evidence have been clarified and
expanded to include modern formats like electronic and digital evidence. This comprehensive
classification ensures that the Indian legal system remains compatible with technological advances
and maintains the integrity of fact-finding in judicial processes.

(A) Oral evidence

📘 ORAL EVIDENCE UNDER BHARTIYA SAKSHYA ADHINIYAM, 2023

🔍 1. Meaning of Oral Evidence

Oral Evidence refers to all statements made by witnesses in the court regarding facts that they
have personally seen, heard, or perceived. It is direct evidence and forms the foundation of
traditional courtroom proceedings.

📖 Legal Basis:
Defined and governed by Sections 55 to 58 of the Bhartiya Sakshya Adhiniyam, 2023.
📚 2. Relevant Provisions under BSA 2023

✅ Section 55 – Oral Evidence Must Be Direct

 All oral evidence must relate directly to the fact in question.

 If a fact is perceived by a person (seen, heard, smelled, etc.), that person must testify.

 Hearsay (secondhand information) is not admissible unless under specific exceptions.

🔹 Example:
A person who saw an accident happening can give oral evidence.
A person who only heard about it from someone else cannot.

✅ Section 56 – Proof of Contents of Documents

 When the contents of a document or electronic record are to be proved, it must be done
using documentary evidence, not just oral statements.

🔹 Note: Oral evidence cannot substitute the contents of a document unless allowed by the Act.

✅ Section 57 – Oral Evidence to Be Given by Witnesses

 Oral evidence must be given by witnesses who are:

o Competent,

o Under oath,

o Present in court (or via video conferencing where permitted).

✅ Section 58 – Hearsay Evidence Not Admissible

 Reiterates that oral evidence must be based on direct knowledge.

 Hearsay is inadmissible unless:

o Covered under exceptions (e.g., dying declaration, expert reports, admissions, etc.).

🧾 3. Features of Oral Evidence

Feature Description

📣 Direct Must be based on what the witness personally experienced

Generally given during a trial under oath and in person or via

🧑‍⚖️In-Court Testimony
video link
Feature Description

⚖️Subject to Cross-Examination Can be challenged by the opposing party to test credibility

Oral statements cannot replace written content unless provided

🔎 Not Substitution for Documents
by law

📌 4. Importance of Oral Evidence

 Establishes the credibility and sequence of events.

 Crucial in criminal trials where eyewitness accounts or victim testimony is key.

 Helps the judge or jury observe demeanor and assess truthfulness.

🚫 Limitations of Oral Evidence

 Can be unreliable or biased.

 Subject to memory lapses, coaching, or falsehood.

 May lack precision compared to documentary or electronic records.

🔍 5. Exceptions to Rule of Direct Oral Evidence

Under certain conditions, hearsay or indirect oral evidence may be admissible:

 Dying declarations

 Admissions and confessions

 Statements under Section 161 CrPC (for contradiction)

 Expert opinion summaries

 Res gestae (facts forming part of the same transaction)

✅ Conclusion

Under the Bhartiya Sakshya Adhiniyam, 2023, oral evidence remains vital to the judicial process,
but it must be direct, relevant, and given by competent witnesses. The Act retains traditional
principles while adapting to modern standards of fairness and reliability, ensuring oral testimony is
used effectively but cautiously in the delivery of justice.

(B) Documentary evidence

📘 DOCUMENTARY EVIDENCE UNDER BHARTIYA SAKSHYA ADHINIYAM, 2023

🔍 1. Meaning of Documentary Evidence

Documentary Evidence refers to all documents, including electronic records, that are presented in
court to establish or disprove a fact in a case. These records must be relevant and admissible under
the law.

📖 Legal Basis:
Defined and governed by Sections 59 to 61 of the Bhartiya Sakshya Adhiniyam, 2023.

📚 2. Definition under BSA 2023

According to Section 2(d) of the BSA:

“Evidence” includes all documents, including electronic records, produced for the inspection of the
Court.

Hence, documentary evidence covers both physical documents (like contracts, wills) and digital
records (like emails, PDFs, CCTV footage).

✅ 3. Relevant Provisions under BSA 2023

📄 Section 59 – Proof of Contents of Documents

 When the contents of a document are in question, they must be proved either by producing
the original (primary evidence) or as per rules regarding secondary evidence.

📄 Section 60 – Primary Evidence

 Refers to the original document itself.

 Must be produced in court to prove its contents unless legally excused.

🔹 Example: An original signed contract shown to the court.

📄 Section 61 – Secondary Evidence

 Refers to copies or substitutes of the original document.

 Admissible only under specific conditions, such as:

o Original lost or destroyed

o In possession of the opposite party

o When original cannot be easily moved (e.g., large records)

 o Certified copies permitted by law

🔹 Examples: Photocopies, certified duplicates, scanned copies, oral accounts of document content.

📂 4. Types of Documentary Evidence

Type Description Example

🧾 Primary Evidence Original document or record Original will or signed contract

📑 Secondary Evidence Substitute when original is unavailable Certified photocopy, carbon copy

Emails, PDFs, WhatsApp chats, digital Screenshot of a message, CCTV

💻 Electronic Records
contracts footage

🔍 5. Conditions for Admissibility

To be admissible in court, documentary evidence must:

1. Be relevant to the case.

2. Be authentic and not fabricated.

3. Be properly proved — either directly (primary) or under exceptions (secondary).

4. In case of electronic records:

o Must satisfy the requirements under Sections 63–66.

o Should be certified and traceable (e.g., hash value, metadata).

🧠 6. Importance of Documentary Evidence

 Provides permanent, verifiable proof of facts.

 Reduces chances of falsification compared to oral evidence.

 Essential in civil cases (contracts, property disputes, wills).

 Increasingly important in digital age litigation.

⚖️7. Documentary vs. Oral Evidence

Feature Oral Evidence Documentary Evidence

Nature Spoken testimony Written or recorded material

Reliability Subject to memory and bias More permanent and verifiable

Form Statements in court Physical or digital records

Preference Documentary preferred when available Oral acceptable only for facts, not documents
Feature Oral Evidence Documentary Evidence

✅ Conclusion

Under the Bhartiya Sakshya Adhiniyam, 2023, documentary evidence includes both traditional
paper records and modern digital files, making it a crucial component of legal proof. The Act
simplifies the process of presenting and proving documents in court while maintaining strict
standards for authenticity, admissibility, and relevance.

(C) Primary and secondary evidence

Primary and Secondary Evidence under Bhartiya Sakshya Adhiniyam, 2023

1. Introduction

The Bhartiya Sakshya Adhiniyam, 2023 governs the rules of evidence in India, including how
documents are to be presented and proved in courts. Documents form critical proof in both civil and
criminal proceedings. The law distinguishes between primary evidence and secondary evidence to
regulate the authenticity and reliability of documents submitted as proof.

2. Statutory Provisions

 Section 60: Deals with Primary Evidence.

 Section 61: Deals with Secondary Evidence.

 Section 2(d): Defines “evidence” to include documents and electronic records.

3. Definitions

 Primary Evidence (Section 60 BSA 2023):

The original document or electronic record itself, produced for inspection by the court to
prove its contents.

 Secondary Evidence (Section 61 BSA 2023):

Evidence given in the form of copies, certified copies, oral accounts, or other substitutes
when the original document is unavailable due to valid reasons.

4. Primary Evidence (Section 60)

Meaning:
Primary evidence refers to the best evidence which is the original document or original electronic
record. It is the first and preferred mode of proving the contents of a document.

Importance:

 Courts prefer primary evidence as it is the most authentic and direct proof.

 It reduces the risk of forgery or tampering.

 It contains the exact wording, signatures, stamps, or other marks essential to establish
facts.

Example:

 A signed original lease agreement submitted in a rent dispute case.

 Original signed will produced in a probate matter.

Advantages:

 Highest reliability and judicial preference.

 Prevents fraud through direct inspection.

 Clear evidence of fact without intermediaries.

Limitations:

 Original documents can be lost, damaged, or destroyed.

 May be held by the opposing party unwilling to produce it.

 Sometimes too bulky or inconvenient to bring to court.

5. Secondary Evidence (Section 61)

Meaning:

Secondary evidence is admissible only when the original document is unavailable for a legitimate
reason. It consists of:

 Certified copies.

 Photocopies.

 Electronic reproductions.

 Oral descriptions of the document’s contents.

Valid Grounds for Secondary Evidence:

According to Section 61, secondary evidence may be produced when:

1. The original document is lost or destroyed, not due to bad faith.

Example: Original contract lost in a fire; a certified copy submitted instead.

2. The original is in possession of the adverse party who refuses to produce it.
Example: Opposing party holding the original deed refuses to allow inspection.
 3. The original document is a public record or official document, and certified copies are
maintained by public officials.

4. The original is too bulky or otherwise inconvenient to produce physically.

Examples:

 Photocopy of a signed employment contract when the original is missing.

 Certified copy of a birth certificate issued by the registrar.

 Email printout authenticated and submitted when the original device is inaccessible.

Advantages:

 Ensures that cases are not dismissed just because the original document is unavailable.

 Provides flexibility and practicality in evidence presentation.

 Adapts to modern-day use of electronic records and digital copies.

 Helps reduce costs and delays.

Limitations:

 Generally considered less reliable than the original document.

 Requires the party to prove the validity of secondary evidence.

 Opens scope for forgery or fabrication.

 Courts may reject secondary evidence if the party fails to provide a satisfactory explanation
for non-production of the original.

6. Comparison Table

Aspect Primary Evidence (Section 60) Secondary Evidence (Section 61)

Copy, reproduction, or oral account of the

Definition Original document or record
original

Preferred by Allowed only if original is unavailable for

Always preferred
Courts valid reason

Lower reliability, requires proof and

Reliability Highest reliability
authentication

Signed original contracts, wills,

Examples Certified copies, photocopies, digital scans
deeds

Lost, destroyed, withheld by adversary,

Grounds for Use Must be produced unless excused
bulky original

Risk of Forgery Minimal Higher risk, subject to scrutiny

Court Produced in court unless valid Must prove original’s unavailability and
Aspect Primary Evidence (Section 60) Secondary Evidence (Section 61)

Requirement excuse given authenticity

7. Practical Applications and Real-Life Examples

 Property Dispute:
Original sale deed (primary evidence) proves ownership. If original is lost in flood, a certified
copy or copy from land registry is used as secondary evidence.

 Contract Enforcement:
Original signed contract is primary evidence. If lost, email communications, scanned copies,
or printed copies are accepted as secondary evidence, provided reason for original’s absence
is explained.

 Digital Evidence:
Original electronic records (e.g., emails, WhatsApp chats) are primary evidence. Backups,
screenshots, or printed copies serve as secondary evidence.

 Public Documents:
Certified copies of birth certificates or licenses (secondary evidence) are admissible as
originals are government-held.

8. Courts’ Approach

Courts strictly follow a hierarchy:

1. Demand primary evidence first.

2. Allow secondary evidence only if original is genuinely unavailable.

3. Require the party to explain the cause of non-production of original.

4. Examine the authenticity and reliability of secondary evidence.

5. Consider corroboration or expert evidence if needed.

6. Reject secondary evidence if explanations are unsatisfactory or evidence appears fabricated.

9. Summary

Aspect Details

Primary Evidence (S.60) Original document or electronic record — most reliable

Secondary Evidence (S.61) Copies, reproductions, or oral description when original unavailable

Valid Grounds for Loss, destruction, withholding by opponent, bulky originals, public
Secondary records

Advantages of Primary Highest authenticity, judicial preference, minimal forgery risk

Aspect Details

Flexibility, prevents injustice due to missing originals, adapts to digital

Advantages of Secondary
age

Limitations of Primary Loss, destruction, inconvenience in production

Limitations of Secondary Less reliable, requires proof of authenticity, risk of forgery

10. Conclusion

The Bhartiya Sakshya Adhiniyam, 2023, carefully balances the need for authentic and reliable
evidence with practical challenges in producing original documents. While primary evidence
remains the cornerstone of documentary proof, secondary evidence plays a crucial role in ensuring
justice is not denied due to the non-availability of originals, especially in today’s fast-evolving digital
environment.