UNIT- III

Q. EXPLAIN THE CONCEPT OF PRESUMPTIONS IN THE LAW OF EVIDENCE.

Presumption is an inference of fact drawn from other known or proved facts. It is a rule
which treats an unknown fact as proved on proof or admission of certain other facts. It
means a rule of law that Courts shall draw a particular inference from a particular fact or
from a particular evidence, unless and until the truth of such inference is disproved.
Presumptions help in determining the probative force of evidence by bringing the
estimation of probative force under some inflexible rules excluding judicial discretion.

Presumption: Kinds of

There are two kinds of presumptions:

(i)May Presume:

Presumption of fact are permissive in the sense that the Court has
discretion to draw or not to draw them. They are also rebuttable as their
evidentiary value may be negatived by contrary proof. Thus these
presumptions afford a provisional proof. That a person found in
possession of stolen property soon after the theft is either the thief or has
received the goods knowing them to be stolen is a presumption of this
type.

(ii)Shall presume:

They are always obligatory; and a judge cannot refuse to draw the
presumption. Such presumptions are either (1) rebuttable, or (2)
irrebuttable. Rebuttable presumptions of law are indicated by the
expression 'shall presume'. They hold good unless and until there is
contrary evidence, e.g., the Court shall presume the genuineness of every
Government publication. (section 84).

These two kinds of presumptions of law are:

(i)Rebuttable (shall presume); and

(ii)Irrebuttable (conclusive proof).

Presumption as to survivorship or burden of proving death

 There is a general presumption of continuity of things. Once a thing is shown to exist, the
law presumes that it continues to exist until the contrary is shown. Section 110 of the
Evidence Act provides that:

110. Burden of proving death of person known to have been alive within thirty
years.-

When the question is whether a man is alive or dead, and it is shown that
he was alive within thirty years, the burden of proving that he is dead is on
the person who affirms it.

This section provides that if it appears that a person, whose present existence is in
question, was alive within thirty years, and nothing whatever appears to suggest the
probability of his being dead, the Court is bound to regard the fact of his still being alive
as proved. But as soon as anything appears which suggest the probability of being dead;
the presumption disappears and the question has to be determined on the balance of
proof.

Presumption of Death

According to section 111 of the Act:

111. Burden of proving that person is alive who has not been heard of for seven
years.-

Provided that when the question is whether a man is alive or dead, and it is
proved that he has not been heard of for seven years by those who would
naturally have heard of him if he had been alive, the burden of proving
that he is alive is shifted to the person who affirms it.

Section 111 materially qualifies the operation and effect of the presumption raised by
section 110. As per this section, if a person has not been heard of for seven years it is
presumption of law that he is dead the burden of proving that he is alive is shifted to the
other side. The presumption of death does not extend to the date of death.

In the recent past, due to the increasing number of dowry death cases, the Parliament amended
the Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act, in order to deal
effectively not only the cases of dowry death, but also cases of cruelty to married women by their
in-laws. Therefore, sections 117 and 118 have been inserted in the Evidence Act. This section
provides that:

117. Presumption as to abetment of suicide by a married woman.-

When the question is whether the commission of suicide by a woman had been abetted by her
husband or any relative of her husband and it is shown that she had committed suicide within a
period of seven years from the date of her marriage and that her husband or such relative of her
husband had subjected her to cruelty, the Court may presume, having regard to all the other
circumstances of the case, that such suicide had been abetted by her husband or by such relative
of her husband.

Explanation.-For the purposes of this section, "cruelty" shall have the same meaning as in section
498A of the Indian Penal Code (45 of 1860).

118. Presumption as to dowry death.-

When the question is whether a person has committed the dowry death of a woman and it is
shown that soon before her death such woman has been subjected by such person to cruelty or
harassment for, or in connection with, any demand for dowry, the Court shall presume that such
person had caused the dowry death.

Explanation.-For the purposes of this section, "dowry death" shall have the same meaning as in
section 304B, of the Indian Penal Code, (45 of 1860).

Q. EXPLAIN THE CONCEPT OF PRESUMPTION OF LEGITIMACY.

It is the general presumption of the society that, the husband could be the father of the child who
was conceived and born during marriage. This presumption is based upon public policy which
requires that every child born during wedlock shall be deemed to be legitimate. Therefore, it is
the conclusive presumption of law. Section 116 of the Act, provides for the conditions when this
presumption can be rebutted in the following words:

116. Birth during marriage, conclusive proof of legitimacy.-

The fact that any person was born during the continuance of a valid marriage between his mother
and any man, or within two hundred and eighty days after its dissolution, the mother remaining
unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be
shown that the parties to the marriage had no access to each other at any time when he could
have been begotten.

This section is based on the legal maxim, "Semper praesumiter pro legitimatione puerorum" (it is
always to be presumed that children are legitimate). Section 116 is an example of law furthering
social objectives by leaning against the tendency to basterdise the child. It does so by making a
conclusive presumption in favour of the legitimacy of the child. The basis of the rule contained
in section 116 seems to be a notice that it is undesirable to enquire into the paternity of a child
whose parents have access to each other:

The following points to be noted:

(i)section 116 refers to the point of time of the birth of the child as the deciding factor and not to
the time of conception of that child; the latter point of time has to be considered only to see
whether the husband had no access to the mother.
(ii)As legitimacy involves 'sexual intercourse' between husband and wife, there is therefore, a
presumption when a child is conceived and born during marriage that such intercourse took place
at a time when according to the laws of nature, the husband could be father of child.

(iii)The presumption applies with equal force even where the child is born within a few days or
even hours after the marriage. Further, it is immaterial that the mother was married or not at the
time of the conception.

In Sethu v. Palani, ILR (1925) 49 Mad 523; a Hindu woman was married to S in Oct. 1903. She
was divorced by him in June 1904. She married another man, T, in July 1904 and gave birth to a
son in Sept., the same year. Thus, the conception was formed when she was the wife of one and
birth took place when she was the wife of another man.

The child was held to be the legitimate child of second husband, the court relying upon the fact
that no proof was available of the fact that T could not have had access to her even when she was
the wife of S. The marriage of the mother to one person is not considered to be a proof of the
lack of access to any other person.

If a man marries a woman not knowing that she is pregnant, he could, by showing that he could
not have had access to the woman when pregnancy commenced, make out that the child is not
his. But if a person knowing that a woman is pregnant marries her, the child of woman though
born immediately after the marriage becomes in law his child unless the man proves that he had
no access to the woman when he could have been begotten.

(iv)Section 116 appears to provide a simple presumption of legitimacy which applies to children
born during a marriage whether conceived before or after the marriage took place, and to
children conceived during the marriage, whether born before the marriage dissolved by the
husband's death or otherwise.

(v)The phrase "non-access" implies no-existence of opportunity for physical intercourse. As the
presumption of legitimacy is highly favoured by law it is necessary that proof of non-access must
be clear and satisfactory.

In Chandramathi v. Pazhetti Balan, MANU/KE/0014/1982 : AIR 1982 Ker 68: (1982) 1 DMC
256; a married woman became pregnant even after her husband had undergone vasectomy
operation. The Court held that vasectomy was not sufficient by itself to over throw the
presumption of legitimacy. No proof was offered to show whether the operation was successful.
Nor there was any evidence regarding the fact that parties had no access before the conception.

(vi)Biomedical test-In some recent cases it has been held that only way to rebut presumption
under section 116 is by proving non-access, and biomedical evidences like blood test, DNA test,
etc. cannot be allowed; Goutam Kundu v. State of West Bengal, MANU/SC/0345/1993 : AIR
1993 SC 2295: 1993 Cr LJ 3233: 1993 AIR SCW 2325: 1993 (2) Crimes 481: JT 1993 (3) SC
443: (1993) 3 SCC 418: 1993 (3) SCJ 206: (1993) 3 SCR 917: 1993 SCC (Cri) 928; Tushar Roy
v. Sukla Roy, 1993 Cr LJ 1659: 1993 (1) All Cr LR 313: 1992 Cal Cr LR 401: 1992 (2) CHN
327: 1992 (3) Crimes 1014: 1993 (1) Cur Cr R 642: 1992 Mat LR 377 (Cal). Where, however,
such evidences are available, it can be used as a circumstantial evidence.

(vii)It may be noted that an admission by the wife that the child is illegitimate is admissible in
evidence.

Dispute as to paternity of Child

Where husband filed the petition for divorce and specifically averred that the wife maintained
extra marital relations with respondent and the child was born not through him but due to
adulterous life of the wife and the wife in her cross-examination expressed no objection for
subjecting herself to DNA test, in the circumstances the application filed by the husband to
subject wife and her son including husband to DNA test to determine of paternity of son, would
be liable to be allowed; Buridi v. Venkata, MANU/AP/0398/2010 : AIR 2010 AP 172.

Q. DEFINE THE BURDEN OF PROOF AND REVERSE BURDEN OF PROOF.

The burden of proof in a criminal case is on the prosecution and the standard of proof required
works on the principle of ‘beyond reasonable doubt’. However, there may be cases where this
principle does not apply and in such cases there is a ‘Reverse Burden of Proof’.
In the interest of justice, equity and good conscience, it is always considered as a fundamental
principles of the Criminal Jurisprudence, to conduct a fair and equitable trial to all the adversarial
parties in the criminal proceedings. When such a principle of the common law of Justice are been
taken care of by various common law countries such as the United Kingdom, Canada, South
Africa, United States of America and India, there are also exiting certain inalienable principles to
such a concept, in criminal jurisprudence.
One amongst them is " Presumption of innocence", which merely means that, the accused person
can't be held guilty until the prosecution can prove him guilty beyond a certain reasonable doubt.
In a single statement, we can say, " innocent until proven guilty ". Herein the onus of the proof of
holding the accused guilty lies upon the prosecution. In the landmark case of Woolmington v.
Director of Public Prosecutions, Such a principle is held as the "Golden thread principle of
criminal law."

Reverse Onus of Proof

Well, to the earlier explained facts of presumption of innocence in the age old doctrine enshrined
in Criminal Law, the Jurists however, created certain rebuttal to such a presumption of
innocence in certain offences. There are many offences in the Indian Penal Code, 1860, where
the accused is presumed guilty at the first instance and the onus or burden of proof lies upon the
defence to prove his innocence or to create a doubt on his guilt. Hence, a Reverse Onus pf Proof
can be defined as that when "One shifts the burden of proof upon the accused after the
Prosecution proves the existence of a foundational fact that leads to the shift in burden."

In India, Presumption of Innocence is rebutted in two cases - one, where there is an expressed
statutory provision reversing the burden of proof, two, where the accused appeals at the appellate
against the judgment of a lower court wherein his presumption is accounted upon that of guilt
and not innocence. The best suited example of Reverse Onus of proof can be of Dowry death, u/s
304B of the Indian Penal Code, 1872. In such a situation, it is always taken accountable the
culpable mental state of the accused which is presumed to be imposing a presumption of
guilt, rather than that of the usual presumption of innocence.

Concluding, Reverse Onus of Proof is one of the most contentious issues in the arena of the
Criminal law and Jurisprudence, where at times, it is seen to a greater extent of curbing down
crimes acting as a deterrent effects to dismantle many socio-economical felonies, crimes or
misdemeanors, while at the same time, the possibility of the abuse of the same can and should
never be disregarded. A continued Detterent Effect to curb down grave and henious socio-
economical crimes using the Reverse Onus of Proof, at the long standing Principle would
definitely be an objective of the law makers and the law dealers in times to come.

Q. WHAT IS EXPERT OPINION UNDER THE INDIAN EVIDENCE ACT?

According to the Bhartiya Sakshya Adhiniyam, 2023, the law says that only direct evidence
‘things you see or experience by yourself’ should be used in court. But there are times when in
some cases the expert’s opinions are needed, mostly in cases that require special knowledge or
skills The Act acknowledges that some issues are too complicated for the Judges or Jurors to
understand on their own.

Section 34 of Bhartiya Sakskya Sdhiniyam, 2023 covers the expert’s opinions, it says that the
court needs to decide or to form an opinion on things like foreign law, science, art, finger
impression, or handwriting they can rely on the opinions of experts who are especially skilled in
the areas.

Why is expert opinion important in courts?

 Some cases involve technical, difficult, or scientific matters or issues that regular persons
might not understand. In such cases, experts help explain these issues.
 Judges and Jurors count on professional experts to help them understand complicated
information. For example, Forensic experts can explain DNA Evidence in criminal cases
makes things easier for the court to make decisions.
 Experts’ opinions are highly valued because they come from people with special skills
and deep knowledge. Their judgment can make a big difference in how a case turns out,
guiding decisions with their expertise and wisdom.
 Experts provide an impartial and unbiased analysis based on their knowledge helping to
present a fair view of the facts.
 Many past cases have shown that expert opinions are really important for solving
complicated problems, that’s why experts are often called upon in court to help make the
right decision.

Who is an Expert?
Section 39 of The Bharatiya Sakshya Adhiniyam, 2023(Sec 45 of the Indian Evidence Act)
defines the Definition of an expert as ‘A person who has special skills in a specific field like
Trade, Sales, Art, Science or identifying handwriting or fingerprints.’

This means an expert is someone who has deep knowledge in a particular area thoroughly:

 An expert is someone who practices the same type of work regularly.

 They observe everything and learn from what they see
 They do a thorough study about that particular subject.

Where Expert’s Opinions are Important:

Expert opinions are something judges rely on for those topics for which they need to understand
such as,

 Laws of the foreign country

 To understand different branches like medicine, chemistry, or physics
 For the field of art which includes things like paintings, music, or literature
 Checking whether the written document the handwriting is real or false
 Identification of fingerprints to identify the identity of someone

For example, Death of Someone by Poison:

If someone dies and poison is suspected, in such cases the court needs a medical expert. The
expert can explain the symptoms caused by different poisons and help the court to understand if
the given poison or the amount of poison identified in the body of the dead person is enough to
cause death.

Why Expert Testimony is important: Experts help in court for a few reasons-

 They are specialized in their field; they have the knowledge that the court does not have
 They provide fair and unbiased opinions which are based on their skills
 In cases involving complex technical topics, experts make the information clear and
make it easier for others to understand

What Makes Expert Testimony Admissible?

For Admissibility of expert words in courts, some criteria can be used to conclude the
admissibility they are, First, the Expert must have a deep and thorough knowledge of that
particular specialized skill subject matter, which is usually shown through higher education,
professional work experience, and recognition in their field. Second, that topic must be
something that requires special learning or experience, something which requires special learning
or long-time experience, and something difficult to understand by ordinary people, in such cases
there is a need for an expert for advice or opinion suggestions. Lastly, the expert’s opinions must
be based on reliable facts and methods, which means the identification results must provide
enough evidence and proper techniques connected to the case. These conditions ensure that the
expert testimony is trustworthy and helpful in court proceedings.

The Role of Expert’s Testimony in Court Cases

Experts’ Opinions are considered less strong or weak as evidence in legal cases because they
don’t provide definite proof always, in the case of S. Gopala Reddy VS State of A.P., in this
case, the court illustrates that the expert advice needs to be supported by solid proof to be
trustworthy. While experts can help explain complicated matters, their opinions should not take
the place of direct evidence. This cautious approach helps prevent mistakes in expert testimony
and ensures that the court’s decisions are based on a thorough review of all the evidence
available.

Views On Relationships and Customs (Sections 44 and 45BSA/50 and 51IEA)

 Opinions on Relationships (Section 44)

Section 44 of the Indian Evidence Act addresses the relevance of opinions regarding
relationships when the court needs to determine the nature of the relationship between two
individuals. This section allows for the admission of opinions expressed by individuals who hold
special knowledge about the relationship, especially by their actions. The opinions in section 44
must be based on how people behave, not just what they say, for example, if the court is deciding
if Aad B are married, the way their family and friends treat them as a married couple can be used
as evidence. However, in cases like divorce, bigamy, or adultery, these opinions alone are not
enough to prove marriage stronger evidence is required.

Opinions on Customs and Habits (Section 45 of BSA/Section 51 of IEA)

 Section 45/Section 51 addresses the relevance of opinions regarding the customs and
habits of a specific class of people. These provisions allow individuals to express their
views on customs or practices that are at issues in the hands of legal proceedings. These
opinions help the court understand a group’s social behaviours, which may affect the
outcome. For example, if villagers claim a customary right to use a well, their opinions
on the well’s usage within the community can help determine whether such rights exist.
This section highlights that customs and social norms play a big role in determining legal
rights.
 In short, Sections 44 and 45 help the court to understand the relationships and social
customs in legal cases while making sure that the evidence provided is reliable and
trustworthy.

Safeguards and Restrictions on Expert Opinion in Judicial Proceedings

1. Cross-examination: Experts can be questioned by the other side to check if their opinions
are valid, including their qualifications and methods. This will help to uncover any fouls
and biases.
 2. Evaluating Importance: the court will evaluate how valuable an expert’s opinion is based
on their expertise, the reliability of their data, and how relevant their opinion is to the
case. If an expert opinion could unfairly bias or confuse the court, it may be excluded.
3. Limits in Some Cases: the opinions of the experts alone are not enough to prove certain
facts, such as marriage in divorce or bigamy cases, where stronger evidence is needed.
4. Need for Additional Evidence: The opinion or thoughts presented by an expert are
considered weak on their own and should be supported by other evidence. Before going
to the judgment or decision about the case in court, the court will look at not only the
expert testimony but also view it with other pieces of evidence.

Q. WHAT ARE THE FACTS THAT NEED NOT BE PROVED UNDER THE INDIAN
EVIDENCE ACT?

 The general rule is party to a suit is required to prove his cause before the court orally or
by document in physical or electronic form.
 The exception to this rule is given under Chapter III of Bharatiya Sakshaya Adhiniyam,
2023 (BSA) where parties are not needed to prove their facts such facts are presumed to
be true.
 Facts: Section 2 (f) of the BSA states that:
o Fact means and includes—
 Anything, state of things, or relation of things, capable of being perceived
by the senses.
 Any mental condition of which any person is conscious.

Facts which Need not to be Proved

 Sections 51 to Section 53 of BSA state the provisions where facts need not need to be
proved under chapter III.

Facts Judicially Noticeable Need not be Proved:

 Section 51 of the BSA states that there are facts which can be judicially noticed and need
not to be proved.
 The expression judicially noticeable means the acknowledgement by the court over a fact
without its existence and truthfulness.
 These facts are presumed to be in the knowledge of the judge and proving them would
undermine the competency of the judge.
 This can be further clearly understood with Section 52 of the BSA

Facts of which Court shall take Judicial Notice (Section 52 of BSA):

 The Court shall take judicial notice of the following facts, namely:
o All laws in force in the territory of India including laws having extra-territorial
operation.
 o International treaty, agreement or convention with country or countries by India,
or decisions made by India at international associations or other bodies.
o The course of proceeding of the Constituent Assembly of India, of Parliament of
India and of the State Legislatures.
o The seals of all Courts and Tribunals.
o The seals of Courts of Admiralty and Maritime Jurisdiction, Notaries Public, and
all seals which any person is authorized to use by the Constitution, or by an Act of
Parliament or State Legislatures, or Regulations having the force of law in India.
o The accession to office, names, titles, functions, and signatures of the persons
filling for the time being any public office in any State, if the fact of their
appointment to such office is notified in any Official Gazette.
o The existence, title and national flag of every country or sovereign recognized by
the Government of India.
o The divisions of time, the geographical divisions of the world, and public
festivals, fasts and holidays notified in the Official Gazette.
o The territory of India.
o The commencement, continuance and termination of hostilities between the
Government of India and any other country or body of persons.
o The names of the members and officers of the Court and of their deputies and
subordinate officers and assistants, and also of all officers acting in execution of
its process, and of advocates and other persons authorized by law to appear or act
before it.
o The rule of the road on land or at sea.
 In the cases referred to in sub-section (1) and also on all matters of public history,
literature, science or art, the Court may resort for its aid to appropriate books or
documents of reference and if the Court is called upon by any person to take judicial
notice of any fact, it may refuse to do so unless and until such person produces any such
book or document as it may consider necessary to enable it to do so.

Facts Admitted Need not be Proved (Section 53 of BSA)

 No fact needs to be proved in any proceeding which

o The parties or their agents agree to admit at the hearing.
o Before the hearing, they agree to admit by any writing under their hands.
o by any rule of pleading in force at the time they are deemed to have admitted by
their pleadings.
o Provided that the Court may, in its discretion, require the facts admitted to be
proved otherwise than by such admissions.

Case Laws

 Onkar Nath & Ors. v. The Delhi Administration (1977): In the case the Supreme
Court held that the list of facts of which the Court shall take Judicial notice under Section
 56 to be read with Section 57 is non-exhaustive, and shall, therefore, depend upon the
discretion of the Court and vary from case to case.
 S. Nagarajan v. Vasantha Kumar & Anr.(1987): In this case the High Court held the
accused guilty by taking judicial notice of circumstances as per section 57 of the Indian
Evidence Act, 1872.
 Subhash Maruti Avasare v. State of Maharashtra (2006): In this case a postmortem was
conducted and the cause of death was deemed to result from 7 succumbed external
injuries and 5 internal injuries. The Court in this case took the judicial notice of the facts
and circumstances and held the accused petitioner guilty.

Q. EXPLAIN THE CONCEPT OF PRIVILEGED COMMUNICATIONS UNDER THE

INDIAN EVIDENCE ACT. WHAT ARE THE TYPES OF PRIVILEGED
COMMUNICATIONS, AND HOW DO THEY IMPACT THE ADMISSIBILITY OF
EVIDENCE IN COURT?

Privileged communication is a legal concept that preserves certain types of conversations from
being revealed in the court.This makes sure of confidentiality in various scenarios like judicial
proceedings, personal relationships, and professional advice.Sections 127-134 of the Bharatiya
Sakshya Adhiniyam,2023(BSA) drafts these in detail by covering judges, married individuals,
official records, and legal advice.

What is Privileged Communication?

Privilege in the legal circumstances means the exemption from being compelled to answer
certain questions or give specific information, even if one is said to be a competent witness.
Sections 127-134 of Bharatiya Sakshya Adhiniyam,2023(BSA) set up a framework for
Privileged Communications.( Earlier under Section 121-129 of Indian Evidence Act)

Key Components

1.Privilege of Judges and Magistrates(Section 127 of BSA) – They get protection from being
compelled to give evidence regarding-

 Their conduct in relation to a case in which they presided over.

 Any facts obtained in their capacity as a court during a trial. This protection can be
bypassed only with a special order from a higher court.

2.Communication During Marriage(Section 128 of BSA) – This section protects

communications between spouses made during their marriage, regardless of whether the
marriage is still unbroken. Even if a spouse steps forward, they cannot reveal such
communications. The law prohibits disclosure, but it doesn’t prevent such communication from
being proved through other means, like conduct.

3.Evidence as to affairs of the state(Section 129 of BSA) – Individuals are prohibited from
giving evidence obtained from Unpublished Official Records relating to state affairs without
taking permission from the head of the relevant department. Permission can only be withheld on
grounds of potential harm to public interest.

4.Official Communications (Section 130 of BSA) – Public officers have the privilege of not
revealing communications made to them in official confidence if they believe that disclosing
such facts would harm the public interest. They can voluntarily give up this privilege, and no
objections can be raised against their disclosure.

5.Information As To Commission Of Offense (Section 131 of BSA) – Police officers and

Magistrates beginning cases are protected from revealing who gave them information about the
offense being committed. Similarly, revenue officers also cannot be questioned about the source
of their information.

6.Professional Communication (Section 132 of BSA) – Advocates are strictly forbidden from
revealing, without their client’s consent unless it relates to illegal activities or facts indicating a
crime or fraud.The communication made should be-

 Made to them during the course of and for the purpose of their employment.
 The contents or conditions of documents came to their knowledge during their
employment.
 Any advice given by them to their client during the course and for the purpose of their
employment.

7.Privilege Not Waived by Volunteering Evidence (Section 133 of BSA) – A party in a legal
proceeding who gives evidence does not automatically waive their right to keep certain
communications confidential. If an advocate is called to testify, they only need to reveal what is
specifically questioned.

8.Confidential Communication with Legal Advisers (Section 134 of BSA) – Individuals cannot
be forced to reveal confidential communications with their legal advisers, except if they
voluntarily testify and the communication is to explain their evidence.

Exceptions

 Judges and Magistrates can be questioned about their observations during legal
proceedings but cannot ask about their judicial conduct or confidential knowledge
gathered in their role.
 Marital Communications disclosure is permitted in situations where one spouse is
prosecuted for crimes against the other, or there is a suit between married persons.
 Information of State affairs is only available with permission from the head of the
department.
 Communications done for criminal purposes or observed facts of crimes are not protected
under professional communication.
 Offering evidence does not waive the right to keep certain communications private.

Examples
  Marital Communications: If a person confesses to their spouse about a crime, this
conversation cannot be revealed unless it’s relevant to a case involving criminal charges
between the spouses.
 Confidential Communication: A client cannot be forced to reveal private conversation
with their lawyer unless the client is testifying and the information is needed to explain
their testimony.

Why is This Important?

Privileged communication is important for maintaining the uprightness of legal processes and by
making sure that individuals can communicate independently within protected contexts. This
protection promotes trust and openness in judicial and professional settings, motivating honest
disclosures without fear of unintended consequences.

Sections 127-134 of Bharatiya Sakshya Adhiniyam, 2023(BSA) are Privileged Communications

which are instrumental in protecting confidential information within the Indian legal system.
These sections enclose various forms of communication, like between judges, spouses,
government officials, and legal professionals. By upholding confidentiality, they strengthen trust
and maintain the integrity of sensitive information while promoting the principles of justice.

UNIT- IV
Q. DISCUSS THE ROLE OF ACCOMPLICE EVIDENCE IN CRIMINAL TRIALS.
EXPLAIN THE RULE OF CORROBORATION AND THE RELIABILITY OF
EVIDENCE GIVEN BY AN ACCOMPLICE WITH RELEVANT CASE LAWS.

An Accomplice, is an individual who is directly or indirectly involved in a criminal act, and can
be connected to the offense either through their actions or by acceptance of their conscious
participation in the crime. Section 138 of the Bharatiya Sakshya Adhiniyam,2023(BSA) talks
about the competency of such Accomplices who act as witnesses in a legal proceeding.An
accomplice is indeed a competent witness and is allowed to appear in court and give evidence
against the primary accused.

RELIABILITY OF ACCOMPLICE TESTIMONY

Section 138 of the Bharatiya Sakshya Adhiniyam,2023(BSA) makes it clear that a conviction
based solely on the statement of an accomplice is not considered illegal. However, this stance
diverges from example (b) of Section 119 of BSA, which implies that the testimony of an
accomplice should be viewed with doubt unless it is corroborated with material particulars.

HARMONY BETWEEN SECTION 138 AND EXAMPLE (B) OF SECTION 119 OF BSA

There exists a balanced relationship between Section 138 and Illustration (b) to Section 119 of
BSA.Section 138 allows convictions based on uncorroborated accomplice testimony in the court,
the courts have made a provident rule that such testimony must firstly pass a doubt test-
  The testimony of the accomplice must display their reliability as a witness.
 The accomplice’s testimony must be validated with material corroboration.

Example (b) to Section 119 of BSA contains this rule of caution, and the courts have often
upheld this principle. In the case of ‘Dagdu v. State of Maharashtra (1977) 3 SCC 68′, the court
stated that there is no inherent conflict between Section 138 and Illustration (b) to Section 119 of
Bharatiya Sakshya Adhiniyam,2023(BSA); rather, the latter works as a rule of presumption.

Key Components

 Definition of Accomplice: Someone associated with the crime, either by direct action or
by admitting their participation.
 Competency as Witness: They are considered to be competent witnesses which means
they can testify in court against the co-accused, but their competency has certain
conditions.
 Testimony Requirements: Their testimony can lead to a conviction, it is recommended
that their testimony needs to be corroborated and supported by additional evidence for
ensuring its reliability.

Exceptions

 Co-Accused Disqualification: The accomplice must not be a co-accused in the same case.
If they happen to be a co-accused in the same case, they are disqualified from being a
prosecution witness. In such a case, a co-accused who wants to give evidence as an
accomplice must seek pardon under Section 343 of the Bharatiya Nagarik Suraksha
Sanhita,2023 and accept the role of a government witness or approver.

Examples

If two people commit a robbery and 1 of the 2 (the accomplice) decides to testify against the
other accused ,his testimony alone could lead to a conviction of the other accused . However, if
there is additional evidence like security footage or witness accounts which support the
accomplice’s testimony , the court is more doubtlessly to consider the accomplice testimony
credible.

Why is this Important?

The importance of Section 138 of Bharatiya Sakshya Adhiniyam,2023(BSA) lies in harmonizing

justice and fairness. Accomplices can give key evidence that may otherwise be difficult to
obtain. However, as they are connected with the crime, their testimony might be prejudiced or
self-serving. Therefore, the law stresses the necessity for corroboration, by making sure that
convictions are not solely based on potentially unreliable testimony.

Section 138 of the Bharatiya Sakshya Adhiniyam,2023(BSA) highlights the importance of

caution when assessing the testimony of an accomplice in a criminal case. While it does allow
convictions solely based on accomplice testimony, it is advisable for such testimony to be
substantiated with material particulars.At the end, the court has the discretion in deciding
whether to rely solely on the testimony of an accomplice or to want to have additional evidence,
by making a balance between the pursuit of justice and fairness in each specific case.

Q. WHAT IS THE WITNESS PROTECTION SCHEME IN INDIA? EXPLAIN ITS

SIGNIFICANCE IN ENSURING THE SAFETY OF WITNESSES AND MAINTAINING
THE INTEGRITY OF TRIALS.

The importance of witnesses in the criminal justice system cannot be overstated. They serve as
the legal systems' foundation and moral skeleton [1]. In the pursuit of providing victims with
justice, witness testimony is indispensable. Witnesses execute a "sacred duty" by testifying
before the courts. As stated by Justice Wadhwa in Swaran Singh v. State of Punjab [2], a
criminal case is built on evidence, specifically admissible in court. Whether it be direct evidence
or indirect evidence, witnesses are needed for that [2]. But it frequently happens that witnesses
become hostile toward the end of a trial. As a consequence, those who were accused are cleared.
Slow trials, frequent cross-examinations, financial inducements, threats, intimidation, or fear for
their own lives or the lives of their loved ones are among the reasons given for antagonism and
withdrawing statements [3, 4]. The accused or any unconnected third parties may threaten
witnesses or the witnesses' families. The judiciary has emphasized the need of safeguarding
witnesses' safety on several occasions. "If the witnesses get threatened or are forced to give false
evidence that also would not result in fair trial," the Supreme Court of India stated in the Best
Bakery case. [5]. Witness protection laws are a requirement in order to guarantee witness safety
and boost public confidence in the criminal justice system. If the government doesn't provide
witnesses with protection, perpetrators could go free. Offenders will continue to avoid
responsibility for the crime they committed if there are no obligatory legal measures in place to
safeguard witnesses. Concerning provisions for witness protection, the international community,
especially the industrialized countries, has responded significantly. Many nations, including the
United States, Australia, Canada, and others, passed witness protection laws decades ago. In
contrast, countries without extensive and distinct witness protection laws include Bangladesh [6]
and India.
India launched its first Witness Protection Scheme (WPS) in December 2018. This essay covers
the key WPS provisions. It points out impediments to the plan's accomplishment and makes
recommendations on how to carry it out in letter and spirit.A reasonable and efficient criminal
justice system must include witness protection. Witnesses are essential to the investigation and
prosecution of crimes because they may offer testimony and evidence. However, witnesses
frequently confront serious dangers and difficulties, including intimidation, reprisal, and concern
for their own and their families' safety. These dangers may discourage potential witnesses from
testifying, which might result in a dearth of data and flawed trials. Governments all across the
globe have created witness protection programmes and plans in recognition of the value of
witness cooperation and protection. In order to safeguard witnesses, a safe atmosphere must be
created for them, and their safety and participation in court processes must be supported.
Programmes designed to safeguard witnesses are meant to allay their concerns and remove any
obstacles in their way, so increasing their desire to testify and aid the cause of justice. With the
launch of the Witness Protection Scheme by the Ministry of Home Affairs in 2018, witness
protection became more popular in India. In especially in high-profile cases or those involving
organised crime, terrorism, or corruption, witnesses are vulnerable, which is why the system was
developed. Its main goal is to foster an atmosphere where witnesses may testify honestly and
courageously, improving the fairness and efficiency of the criminal justice system. It is
impossible to exaggerate the importance of witness protection in India. Intimidation of witnesses
and witness tampering have been ongoing problems for the judicial system in India because of
the country's diversity, population, and complicated social structure. Witnesses frequently endure
significant risks, including physical injury, social shame, and financial consequences,
particularly in situations involving powerful people or criminal organisations. Without adequate
witness protection, the legal system is open to manipulation, tainted trials, and loss of public
confidence.

Features of India's Witness Protection Scheme

Eligibility and Purpose: The scheme divides witnesses into three categories, based on the
severity of the threat they face. The most severe threats that extend to the lives of the witness or
their family members fall under Category A. Category B pertains to threats that may affect the
safety, reputation, or property of the witness or their family members. Category C covers
moderate threats, such as harassment or intimidation of the witness or their family members'
reputation.

Protective Measures: To protect witnesses, the scheme includes a number of protective

measures. These might involve changing one's identity, moving to safe homes or new residences,
giving one's self new identities, personal security, and tight protection. Based on an evaluation of
the dangers and hazards each witness faces which is ascertained by the Threat Analysis Report
prepared by police, particular protective measures are chosen by the Competent Authority which
is headed by a Judge, Public Prosecutor and head of the district Police.

Risk Assessment and Protection Orders: The scheme appoints a competent authority in charge
of completing a thorough evaluation of the dangers and hazards to witnesses. The competent
authority provides protection orders outlining the appropriate protective measures to be put in
place for each witness based on this evaluation.The plan calls for the creation of a Special
Witness Protection Unit (SWPU) specifically designed to coordinate and carry out witness
protection measures in each state. The SWPU serves as the nodal institution in charge of
evaluating, approving, and overseeing protective measures. A witness protection fund has been
established to offer financial assistance for the execution of safety precautions. The money from
the fund is used to cover the costs of the protected witnesses' housing, transportation, relocation,
identity change, and other essential support services.
Confidentiality and non-disclosure: The scheme places a strong emphasis on the necessity of
upholding the secrecy and non-disclosure of the names and whereabouts of the protected
witnesses. It provides strict guidelines to make sure that personal data on witnesses is kept
private and shared only to those who need to know.

Q. DISCUSS THE EXAMINATION OF WITNESSES IN COURT. EXPLAIN THE

RULES OF CROSS-EXAMINATION, LEADING QUESTIONS, AND REFRESHING
MEMORY UNDER THE INDIAN EVIDENCE ACT.

Examination of Witness is the process through which parties present and challenge in the court
the evidence provided by witnesses.There are 3 main stages of examinations- examination-in-
chief, cross-examination, and re-examination as provided under BSA.( Earlier under section 137-
138 of Indian Evidence Act)

Key Components

 Examination-in-Chief:This examination is the first preliminary stage for questioning a

witness by the party who called them to testify. Its aim is to set up facts and evidence that
support the case of the party.

 Cross-Examination:This second stage of examination comes after the examination-in-

chief and is conducted by the opposing party. The main aim is to challenge the testimony
of witnesses, test their credibility, character and uncover inconsistencies.Leading
questions can be asked during cross-examination even without court permission or
objections from the opposing party. In cases of witness hostility, leading questions are
allowed even by the party calling the witness.

 Re-Examination: After the cross-examination, this is the third stage under which the
party who called the witness in the preliminary stage may conduct re-examination. This
stage purpose is to clarify or rebut issues which were raised during cross-examination. It
is mainly interested in addressing points brought up by the opposing party’s questions.

Exceptions

 Cross-Examination : Even though cross-examination usually revolves around the facts

which were covered in examination-in-chief, it is not limited to those facts only. The
opposing party can ask additional questions to test the credibility,trustworthiness of the
witness and the reliability of their testimony.

 Re-Examination : Re-examination should usually revolve around the matters raised

during cross-examination. However, just in case if new issues arise during re-
examination with the permission of the court, the opposing party can engage in further
cross-examination on those new matters.
Examples

Visualize a picture in a trial where a witness testifies in favor of the plaintiff during examination-
in-chief about a dispute in a contract. During cross-examination, the opposing party may ask the
witness about their knowledge of related contract terms which was not covered in the initial
testimony. Afterwards, the plaintiff’s attorney may do re-examination to clarify any
misconceptions or misstatements that arose during cross-examination.

Why is this important?

These stages provided from Section 142 to143 of Bharatiya Sakshya

Adhiniyam,2023(BSA) makes sure that the examination process is conducted properly and
comprehensively. It permits a systematic approach to presenting and challenging evidence,
which is important for achieving justice.

The systematic approach to witness examination with examination-in-chief, cross-examination,

and re-examination plays a significant role in the judicial process. It helps to uncover the truth,
test the credibility and reliability of testimonies, and makes sure that all relevant facts are
properly examined.

Q. EXAMINE THE ROLE OF FORENSIC SCIENCE IN CRIMINAL

INVESTIGATIONS. DISCUSS THE EVIDENTIARY VALUE OF DNA TESTING,
NARCO-ANALYSIS, AND OTHER FORENSIC TECHNIQUES IN MODERN LAW.

'Forensic science,' after all these years, is the backbone and cosmetic utility of the investigative
agencies, completing the formality of the legal procedure and satisfying the lay public. To please
the curious and demanding media and citizenry, it is only highlighted and remembered when
significant or newsworthy crimes occur. In India, forensic science is stagnant and stunted in
comparison to other fields of science and technology. It is not being used in its entirety to assist
law enforcement authorities and the criminal justice system in their investigations. The
advantages of refining, regulating, and reorganizing forensic science in comparison to other
technologies are evident since it effectively aids law enforcement authorities in criminal
investigations and provides proactive support plus it also led to improvement in Internal security,
aid in criminal justice administration, and reducing the chance of false conviction/exoneration.

Finally, discussions regarding the scientific method and the admissibility of such evidence in
criminal prosecutions eclipsed the debate over possible violations of fundamental human rights.
As a result, there has been a paucity of critical discussion about how scientific advances are
eroding civil freedoms. The disputes on the development of forensic DNA and Narco analysis
are revisited in this work. It draws similarities with current events and examines the possibilities
for existing and future human rights violations, emphasising that the libertarian model provides a
vital counterpoint to the other arguments by emphasising the need for basic rights preservation.
The admissibility of DNA evidence in court is always reliant on its completeness and accuracy
collection, preservation, and recording, which might persuade the court that the evidence
presented is trustworthy. In India, there is no explicit legislation that may offer precise directions
to investigative agencies and courts, as well as the method to be followed in instances requiring
DNA as evidence. Furthermore, the Indian Evidence Act4 of 1872 and the Code of Criminal
Procedure5 of 1973 include no special provisions for dealing with science and technology
concerns. Due to the lack of such a provision, an investigation officer has a difficult time
gathering evidence that requires contemporary mechanisms to show the accused person's guilty.

Narco analysis is derived from a Greek word NARKE, which means anesthesia or trance, and
was used to describe a diagnostic psychotherapeutic technique that uses psychotropic drugs to
induce a stupor suspension or great diminution of sensibility, a state in which mental elements
with strongly associated effects come to the surface and can be exploited by the therapist (or
investigating agency). Lie Detector Testing or Truth System Testing are other names for the
Narco analysis exam. Bypassing the serum, the individual is put into an unconscious condition
and is free to utter anything that comes to mind. In a variety of circumstances, advanced
technology requires two professions, law, and science, to collaborate.

Only a few democratic countries, most notably India, still utilize narco analysis. The people and
the media in that country are increasingly critical of this. In most developed and/or democratic
nations, narcotics analysis is not openly authorized for investigation reasons. An
anesthesiologist, a psychiatrist, a clinical/forensic psychologist, an audio-videographer, and
accompanying nursing personnel performs the narco analysis test in India. When it comes to the
constitutional status of these tests, fingerprinting and ballistic reports are to be deemed
constitutional, but when it comes to the conclusiveness of narco analysis and brain mapping in
terms of their constitutional status, it is still in dispute. The most pressing constitutional problem
is the implementation of the narco test in respect to the accused, which involves a breach of his
constitutional rights under Articles 20(3) and 2120. Article 20(3), often known as the right
against self-incrimination.

Q. WHAT IS THE LEGAL SIGNIFICANCE OF ELECTRONIC EVIDENCE UNDER

THE BHARATIYA SAKSHYA ADHINIYAM, 2023? DISCUSS ITS ADMISSIBILITY,
AUTHENTICITY, AND JUDICIAL INTERPRETATION WITH RELEVANT CASE
LAWS.

"Evidence" as defined under section 2(e) of Bharatiya Sakshya Adhiniyam, 2023 includes all
statements including statements given electronically which the Court permits or requires to be
made before it by witnesses in relation to matters of fact under inquiry and such statements are
called oral evidence; and all documents including electronic or digital records produced for the
inspection of the Court and such documents are called documentary evidence.
Prior to enactment of Bharatiya Sakshya Adhiniyam, 2023, section 3 of Indian Evidence Act, did
not include statements given electronically. And a question arose before the Hon’ble Supreme
Court, with regard to the question of validity of procedure of recording the oral evidence of
witnesses through video conferencing, as Section 273 of the Criminal Procedure Code does not
provide for the taking of evidence by video conferencing. The Hon’ble Supreme Court of India
in State Of Maharashtra vs Dr. Praful B. Desai2 held that “Section 273 provides for dispensation
from personal attendance. In such cases evidence can be recorded in the presence of the pleader.
The presence of the pleader is thus deemed to be presence of the Accused. Thus Section 273
contemplates constructive presence. This shows that actual physical presence is not a must. This
indicates that the term "presence", as used in this Section, is not used in the sense of actual
physical presence. A plain reading of Section 273 does not support the restrictive meaning
sought to be placed by the Respondent on the word "presence". One must also take note of the
definition of the term 'Evidence' as all statements which the Court permits or requires to be made
before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral
evidence and all documents including electronic records produced for the inspection of the
Court; such documents are called documentary evidence" Thus evidence can be both oral and
documentary and electronic records can be produced as evidence. This means that evidence,
even in criminal matters, can also be by way of electronic records. This would include video-
conferencing.”

Electronic Evidence: The Hon’ble Apex Court in Tomaso Bruno & Anr vs State Of U.P
observed that the relevance of electronic evidence is also evident in the light of Mohd. Ajmal
Mohammad Amir Kasab vs. State of Maharashtra, (2012), wherein production of transcripts of
internet transactions helped the prosecution case a great deal in proving the guilt of the accused.
Similarly, in the case of State (NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru, (2005) 11 SCC
600, the links between the slain terrorists and the masterminds of the attack were established
only through phone call transcripts obtained from the mobile service providers.” The Honb’le
Apex Court also held that non-production and collection of electronic evidence such as CCTV
footage, call records and SIM details of mobile phones seized from the accused cannot be said to
be mere instances of faulty investigation but amount to withholding of best evidence.

Admissibility of electronic records: Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, states
that any information contained in an electronic record which is printed on paper, stored, recorded
or copied in optical or magnetic media or semiconductor memory which is produced by a
computer or any communication device or otherwise stored, recorded or copied in any electronic
form (referred to as the computer output) shall be deemed to be also a document. Such Electronic
record is admissible in any proceedings, without further proof or production of the original, as
evidence or any contents of the original or of any fact stated therein of which direct evidence
would be admissible if the conditions mentioned under section 63 are satisfied.

Several offences have been taking place due to the increased use of technology in our day to day
lives. Even simple chats in whats app, SMS can be spoofed and modified. And the caller ID and
emails of individuals can be spoofed. Therefore, electronic and digital records become relevant
in all these cases as evidence. However, the electronic and digital records have to be evaluated
carefully. The chain of custody of such records have to be prepared to show who handled the
evidence, as mishandling the same can corrupt the evidence. Special skills and infrastructure are
required for handling and preserving electronic and digital records. And there is need to
formulate safeguards for ensuring the information contained in the electronic records is
protected, also ensuring to protect the privacy and confidentiality in such information.