Mr. Deepak, Student of Maharshi Dayanand University, Rohtak

Introduction:

The Bharatiya Sakshya Adhiniyam, 2023 (Act No. 47 of 2023) is a significant legislative reform enacted by the Parliament of India to modernize and consolidate the rules and principles governing evidence in judicial proceedings. This Act replaces the Indian Evidence Act of 1872, aiming to align the legal framework with contemporary advancements and address the complexities of the modern judicial landscape. The main purpose of this act to Enhanced Clarity in Legal Proceedings. To make trials more transparent, fair, and effective. To address challenges posed by cybercrime and digital substantiation.

Types of evidence under Bhartiya Sakshya Adhiniyam, 2023:

The Bhartiya Sakshya Adhiniyam, 2023 (Indian Evidence Act, 2023) classifies evidence into several types, similar to the previous Indian Evidence Act, 1872, but with updated provisions to align with modern technology and legal principles. The primary types of evidence under this act are:

1. Oral Evidence
   • Statements made by witnesses in court, under oath.
   • Must be direct evidence (witnesses should have personally seen, heard, or perceived the fact).
2. Documentary Evidence
   • Any document (written, printed, electronic) presented in court.
   • Includes contracts, letters, records, and digital records.
3. Digital Evidence (Expanded in 2023 Act)
   • Electronic records, emails, SMS, social media messages.
   • Computer outputs, CCTV footage, server logs.
   • Admissibility under Section 63 of the new Act.
4. Primary Evidence
   • The original document itself.
   • Includes the original physical or digital record.
5. Secondary Evidence
   • Certified copies, photocopies, or oral accounts of a document’s contents.
   • Used when primary evidence is unavailable under legal grounds.
6. Direct Evidence
   • Evidence based on direct perception (seeing, hearing, experiencing).
   • Most reliable form of evidence.
7. Circumstantial Evidence
   • Facts that imply the occurrence of an event rather than proving it directly.
     • Example: Fingerprints at a crime scene.
8. Hearsay Evidence (Generally not admissible, with exceptions)
   • Second-hand information, where the witness did not directly perceive the fact.
   • Some exceptions apply, such as dying declarations.
9. Expert Evidence
   • Given by specialists in forensic science, medicine, handwriting, etc.
   • Court considers expert opinions but is not bound by them.
10. Character Evidence
    • Evidence about a person’s character (generally inadmissible except in specific cases, like sexual offenses).
11. Judicial and Extrajudicial Confessions
    • Judicial confession: Given before a magistrate/court (admissible).
    • Extrajudicial confession: Given to a third party (admissibility depends on circumstances).
12. Dying Declaration
    • Statement made by a dying person about the cause of death.
    • Admissible under Section 32 (old Evidence Act) and its equivalent in the 2023 Act.

 Oral Evidence under Bhartiya Sakshya Adhiniyam, 2023:

Section 54 of BSA 2023:

All facts, except the contents of documents may be proved by oral evidence. Section 55 of BSA 2023: Section 55 of the Bharatiya Sakshya Adhiniyam, 2023, titled “Oral evidence to be direct,” mandates that all oral evidence must be direct. Specifically:

• If the evidence pertains to a fact that could be seen, it must come from a witness who personally saw it.
• If it relates to something that could be heard, the witness must have directly heard it.
• For facts perceived through other senses or in any other manner, the witness must have directly experienced it through that sense or manner.

The section includes provisions allowing expert opinions from treatises to be admitted under certain conditions, such as when the author is deceased or unavailable. Additionally, if oral evidence concerns the existence or condition of a material object (excluding documents), the court may require the production of that object for inspection.

This section emphasizes the necessity of firsthand testimony, ensuring that witnesses provide evidence based on their direct experiences, thereby upholding the integrity and reliability of oral evidence in judicial proceedings.

Requirements of direct oral evidence:

• Oral evidence must be given by a person who directly perceived the event.
• Hearsay evidence (statements made by someone who did not personally witness the event) is generally inadmissible unless it falls under specific exceptions
• In the case of Mujahar Ali v. State of Uttar Pradesh, the Supreme Court of India emphasized the necessity of direct evidence, ruling that testimony must be based on the witness’s own perception and not on hearsay.
• In State of Maharashtra v. Damu Gopinath Shinde, the Court reiterated that oral evidence must be direct and based on the personal knowledge of the witness, underscoring the inadmissibility of indirect or secondhand testimony.

Who Can Give Oral Evidence?

Any Witness Who Has Personal Knowledge A person who has directly seen, heard, or perceived an event or fact relevant to the case can provide oral evidence. Hearsay (i.e., secondhand knowledge) is generally not admissible unless covered under exceptions.

• Experts

Persons with specialized knowledge (e.g., forensic experts, doctors, handwriting specialists) can provide oral testimony regarding their expertise.

• Police Officers & Investigators

If they were directly involved in investigations or seized evidence.

• Electronic & Digital Evidence Witnesses

Persons who handled electronic records, IT experts, or custodians of digital data.

• Dying Declaration Witnesses

A person who heard the dying declaration of a deceased person can testify.

Forms of Oral Evidence:

• Verbal Statements: Spoken words by a witness in court.
• Non-Verbal Communication: If a person cannot speak, gestures or signs can be considered oral evidence (e.g., a deaf-mute person using sign language).

Case laws– Statement made by gestures, as seen in Queen Empress v. Abdullah (1885).

Principles of Examination of Witnesses:

The examination of witnesses in oral evidence follows a structured procedure:

• Examination-in-Chief: The party who calls the witness examines them first to establish facts supporting their case.
• Cross-Examination: The opposing party questions the witness to test their credibility, challenge their statements, and expose contradictions.
• Re-Examination: The party who called the witness may further question them to clarify any ambiguities arising from cross-examination.

 Leading Questions:

• During examination-in-chief, leading questions (suggesting the answer) are generally not allowed unless permitted by the court.
• In cross-examination, leading questions are permitted to test the witness’s truthfulness.

Hostile Witnesses:

If a witness gives inconsistent or adverse statements, they may be declared hostile by the court, allowing cross-examination by the party who called them.

Key Provisions on Electronic & Digital Records in BSA, 2023.

1. Definition of Electronic & Digital Records-
   • The Act defines electronic records as per the Information Technology Act, 2000, covering emails, text messages, social media posts, and any data generated, received, or stored digitally.
   • Digital records include computer outputs, metadata, CCTV footage, and blockchain records.
2. Admissibility of Electronic Evidence-
   • Digital records are treated as primary evidence if they meet authenticity standards.
   • Section 63 (similar to Section 65B of the Indian Evidence Act, 1872) provides the conditions for electronic records’ admissibility.
   • A certificate under Section 63(4) must be provided, confirming the electronic record’s authenticity, method of production, and the device from which it was retrieved.
   • Anvar P.V. v. P.K. Basheer (2014): This Supreme Court judgment clarified the admissibility of electronic records, emphasizing the necessity of a certificate under Section 65B of the Indian Evidence Act for such records to be considered valid evidence. While the BSA now classifies electronic records as primary evidence, the principles from this case regarding authentication remain pertinent.
3. Presumptions Regarding Electronic Evidence-
   • Courts presume the accuracy of digital records unless challenged.
   • Electronic signatures, timestamps, and blockchain-based records are presumed to be authentic under specific conditions.
4. Secondary Evidence in Digital Form-
   • If primary digital evidence (original file) is unavailable, secondary evidence (screenshots, printouts, or copies) may be admitted under certain conditions.
5. Judicial Recognition of Digital Evidence-
   • The Act facilitates courts to accept, evaluate, and rely on digital evidence, reinforcing its legal standing.

Exceptions to the Rule of Direct Evidence:

1. Judicially Noticeable Facts: Under Section 52, facts that the court recognizes as universally known or established do not require direct evidence. The court can accept these facts without formal proof.
2. Admitted Facts: As per Section 53, any fact acknowledged by the parties involved in a case doesn’t need direct evidence. Such admissions are accepted as truth, streamlining the judicial process.
3. Secondary Evidence: Sections 58 to 60 outline situations where primary evidence isn’t available. In such cases, secondary evidence, like copies or oral accounts of a document’s content, may be admitted. This ensures that the unavailability of original evidence doesn’t hinder justice.
4. Hearsay Evidence: Generally inadmissible, hearsay evidence can be accepted under certain conditions, such as:
5. Dying Declarations: Statements made by a person on their deathbed concerning the cause of their death can be admitted, recognizing the gravity of such moments.
6. Statements in the Course of Business: Entries or records made during regular business operations can be exceptions to the hearsay rule, given their routine nature.

Conclusion:

Oral evidence plays a crucial role in judicial proceedings under the Bhartiya Sakshya Adhiniyam, 2023, but it must be relevant, direct, and credible. Courts assess its reliability through cross-examination, corroboration, and consistency with other evidence before making a determination.