BSA: Documents, Electronic Records, Burden of Proof and Witnesses — Judicial Services
Weightage: Documents, electronic evidence, burden of proof and witnesses are the second half of the law of evidence and are asked in both the Civil Law and Criminal Law papers. The BSA is the new text for trials from 1 July 2024, and electronic records got the most attention in the reform. Where this chapter gives only the Evidence Act number, the corresponding BSA provision exists, and you should confirm the number on the Bare Act.
1. How to approach documents
A document may be proved by primary or secondary evidence, and the court asks whether the original was produced, and if not, why. For an electronic record, it asks for the certificate. Learn the three steps: primary first, secondary only on a ground, certificate for electronic records.
2. Primary and secondary evidence
- Primary evidence (BSA 57, IEA 62): the document itself produced for the inspection of the court. Where a document is executed in several parts, each is primary evidence against the party who signed it, and counterparts are primary against the parties who signed them. An electronic or digital record is primary evidence, and so is a record stored simultaneously or sequentially in multiple files and each such file is treated as primary.
- Secondary evidence (BSA 58, IEA 63): certified copies, copies made from the original by mechanical processes that ensure accuracy, copies compared with the original, counterparts against non-signing parties, and oral accounts of the contents given by a person who has seen the document. The BSA also treats oral and written admissions about the contents and the evidence of a skilled person who has examined a document with numerous accounts as secondary evidence.
3. When secondary evidence is allowed
BSA 60 (IEA 65) allows secondary evidence where the original is:
- In the possession of the adverse party, who fails to produce it after notice.
- Lost or destroyed, with proof that it was not lost through the party's own default.
- Not easily movable, or in the possession of a person that the court cannot compel to produce it.
- A public document, for which a certified copy is enough.
- A document of numerous accounts that cannot conveniently be examined.
4. Oral evidence cannot vary a written contract
Where the terms of a contract, grant or disposition of property have been reduced to a document, no evidence may be given of them except the document itself (BSA 94, IEA 91). No oral evidence may be given to contradict, vary, add to or subtract from its terms (BSA 95, IEA 92).
The provisos allow evidence of:
- Fraud, intimidation, illegality, want of due execution, want of capacity or failure of consideration.
- A separate oral agreement on a matter on which the document is silent.
- A condition precedent to the attaching of any obligation.
- A later discharge, and usage to explain terms.
5. Electronic records: the key reform
The BSA treats electronic and digital records as documents and as evidence (BSA 2(1)). BSA 61 says an electronic record is not to be denied legal effect, validity or enforceability merely because it is electronic. BSA 62 says that its contents may be proved in accordance with BSA 63.
BSA 63 (IEA 65B): information in an electronic record stored or copied by a computer, communication device or similar means is deemed a document and is admissible without further proof of the original, subject to a certificate and to conditions: the device was in lawful control and regular use, information was regularly fed, and the device was working properly.
The BSA places the certificate in a Schedule with two parts: Part A, by the person in charge of the device, and Part B, by an expert, and it requires a hash value of the file.
The case law behind the rule is a favourite question:
- Anvar P. V. v. P. K. Basheer (2014): the certificate is mandatory for electronic evidence by secondary copy.
- Shafhi Mohammad (2018) had relaxed this where the device was with a third party.
- Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020): Anvar is correct, and the certificate is mandatory, while the court may order its production where the party cannot obtain it.
6. Burden of proof
- BSA 104 (IEA 101): whoever wants a court to give judgment on a legal right or liability depending on facts he asserts must prove them.
- BSA 105 (IEA 102): the burden lies on the person who would fail if no evidence were given on either side.
- Criminal cases: the prosecution must prove guilt beyond reasonable doubt, and the accused is presumed innocent. In a civil case, the standard is the preponderance of probabilities.
- Exceptions: where an accused claims a general exception, the burden of bringing himself within it lies on him (BSA 108, IEA 105), though he needs only to raise a reasonable doubt.
- Facts especially within knowledge (BSA 109, IEA 106): the burden of proving such a fact lies on the person who has the knowledge. It does not shift the prosecution's burden and fills only a gap (Shambhu Nath Mehra v. State of Ajmer, 1956). In Trimukh Maroti Kirkan v. State of Maharashtra (2006), where a wife was killed inside a house in which only the husband lived with her, he had to explain.
7. Presumptions
The Act uses three terms: "may presume" (the court has discretion), "shall presume" (the court must, unless disproved) and "conclusive proof" (no disproof allowed).
| Presumption | BSA | IEA |
|---|---|---|
| Legitimacy: birth during marriage is conclusive proof of legitimacy | 116 | 112 |
| Abetment of suicide by a married woman within seven years of marriage | 117 | 113A |
| Dowry death: shall presume where cruelty for dowry soon before death | 118 | 113B |
| Common course of natural events: court may presume certain facts | 119 | 114 |
| Absence of consent in a rape case, where intercourse is proved and she says she did not consent | 120 | 114A |
8. Estoppel
BSA 121 (IEA 115): where a person has, by a declaration, act or omission, intentionally caused or permitted another to believe a thing to be true, and the other acted on it, neither he nor his representative may deny the truth of that thing in a suit between them. Estoppel is a rule of evidence, and there is no estoppel against a statute.
9. Competency of witnesses
BSA 124 (IEA 118): all persons are competent unless the court considers that they are prevented from understanding the questions or giving rational answers by tender years, extreme old age, disease or a similar cause. A child is competent if able to understand and give rational answers, and the court takes care to assess tutoring (Dattu Ramrao Sakhare v. State of Maharashtra, 1997).
A dumb witness may give evidence by signs. A spouse is competent in most cases, but communications between spouses during marriage are privileged (IEA 122).
Privileged communications include those between advocate and client (IEA 126), State affairs (IEA 123) and judicial officers' conduct (IEA 121).
10. Accomplices and the number of witnesses
An accomplice is a competent witness (BSA 138, IEA 133), and a conviction on his uncorroborated testimony is not illegal, but the court may presume that he is unworthy of credit unless corroborated in material particulars (BSA 119, IEA 114 illustration (b)). No particular number of witnesses is required to prove a fact (IEA 134), and the court weighs quality over number.
In Vadivelu Thevar v. State of Madras (1957), witnesses are wholly reliable, wholly unreliable, or neither, and in the third case the court looks for corroboration.
11. Examination of witnesses
- Examination-in-chief is by the party who calls the witness, with no leading questions on material points.
- Cross-examination is by the adverse party, and leading questions are allowed. It can contradict by previous statements and impeach credit.
- Re-examination is only to explain matters arising in cross-examination.
- A hostile witness is one who turns against the party calling him. With the court's permission the party may cross-examine him. His testimony is not wholly rejected, and the part that is credible and corroborated may be used (Bhagwan Singh v. State of Haryana, 1976).
- The Judge may put any question to a witness to discover the truth, as the old Act's Section 165 allows.
12. A problem-answer pattern
A sues B on a sale agreement, and B says that the written agreement was subject to an oral condition that it would take effect only if A obtained a loan. The document is silent. Answer in four steps:
- BSA 95 bars oral evidence to vary a written document.
- The proviso on a condition precedent allows oral evidence that the agreement was to take effect only on A obtaining a loan.
- B must prove the condition.
- The burden lies on B under BSA 104, and the court decides on the evidence.
Common traps judicial exams set here
- Admitting a printout without a certificate. BSA 63 requires a certificate with the two parts.
- Shifting the whole burden to the accused under BSA 109. It fills only a gap.
- Treating a hostile witness as wholly discredited. The credible part may be used.
- Allowing oral evidence to vary a contract. Only the provisos allow it.
- Relying on an accomplice without corroboration. Legal but unsafe.
Memory aids
- "57 primary, 58 secondary, 60 when, 63 electronic": the document sections.
- "104 who asserts, 109 within knowledge": burden.
- "Wholly reliable, wholly unreliable, neither": Vadivelu Thevar.
Summary
Documents are proved by primary evidence, with secondary evidence allowed on stated grounds, and written terms cannot be varied by oral evidence except under the provisos. Electronic records are admissible under BSA 63 on a two-part certificate with a hash value.
The burden of proof lies on the one who asserts, the prosecution must prove guilt beyond reasonable doubt, and presumptions operate in specified cases. Witnesses are generally competent, accomplices need corroboration, and hostile testimony is not wholly rejected.
Exam protocol
- Ask primary or secondary, then certificate, then burden.
- Cite the BSA section with the IEA section.
- Weigh credibility, not the number of witnesses.
