BSA: Relevancy, Admissions, Confessions and Expert Opinion — Judicial Services
Weightage: The Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaced the Indian Evidence Act, 1872 from 1 July 2024. Evidence is part of the Criminal Law paper in the Madhya Pradesh pattern and is a core Prelims subject everywhere. The BSA has 170 sections against 167 in the old Act, and most of the content carries over. Section numbers below follow the commonly published conversion tables; confirm each against the Bare Act.
1. What the law of evidence does
A court decides facts only on legal evidence. The law of evidence says what facts may be proved (relevancy), how they may be proved (documents, oral evidence, electronic records) and who must prove them (burden). Always ask three questions: is it relevant, is it admissible, and how much weight does it carry?
2. Facts in issue and relevant facts
- BSA 3 (IEA 5): evidence may be given of facts in issue and of relevant facts, and of nothing else.
- BSA 4 (IEA 6): res gestae: facts so connected with a fact in issue that they form part of the same transaction, even if at different times and places.
- BSA 5 (IEA 7): facts that are the occasion, cause or effect of facts in issue.
- BSA 6 (IEA 8): motive, preparation and conduct, previous or subsequent.
- BSA 8 (IEA 10): things said or done by a conspirator in reference to the common intention after it was formed are relevant against each conspirator.
Hearsay is generally excluded, but the BSA allows a statement that is part of the res gestae, such as a spontaneous exclamation made at the time of the event.
3. Admissions
An admission is a statement, oral, documentary or electronic, that suggests an inference about a fact in issue or a relevant fact, made by a party or a person specified in the Act (BSA 15, IEA 17).
- An admission is evidence against its maker, but not in his favour except in specified cases.
- It is not conclusive proof, but it may estop the maker.
- Admissions of a party's agent or of a person jointly interested bind the party where the Act says so.
- An admission in a civil case made without prejudice is not proved.
The difference from a confession: an admission is broader and does not need to be an admission of guilt, while a confession is an admission of guilt in a criminal case.
4. Confessions: the central rules
A confession is not defined in the Act, but the Privy Council in Pakala Narayana Swami v. Emperor (1939) said it must either admit the offence in terms or substantially all the facts that constitute it. The main rules:
| Rule | BSA | IEA |
|---|---|---|
| Confession caused by inducement, threat, coercion or promise from a person in authority is irrelevant | 22 | 24 |
| A confession made to a police officer cannot be proved against an accused, and a confession made in police custody is not proved unless made in the immediate presence of a Magistrate | 23(1) | 25, 26 |
| Discovery exception: so much of the information as relates distinctly to the fact discovered may be proved | 23(2) | 27 |
| Confession of a co-accused may be considered against others when jointly tried for the same offence | 24 | 30 |
On discovery, the leading case is Pulukuri Kottaya v. Emperor (1947): the information must lead to the discovery of a fact, and only the part that distinctly relates to it is admissible. The fact discovered, such as the place of concealment, is what matters, not the statement of how the accused came to know of it as such.
5. Judicial confessions and weight
A confession recorded by a Magistrate under BNSS 183 (CrPC 164) is a judicial confession, which the Magistrate must find to be voluntary after warning the accused that it may be used against him. A confession that is retracted or later withdrawn can still support a conviction if found voluntary and true, though corroboration is a rule of prudence.
The confession of a co-accused is not substantive evidence. It can only lend assurance to other evidence (Haricharan Kurmi v. State of Bihar, 1964).
6. Dying declarations: Section 26
BSA 26(1) (IEA 32(1)): a statement by a person as to the cause of his death or the circumstances of the transaction that resulted in his death is relevant when the maker is dead, in a case in which the cause of death comes into question.
- It is admissible without oath and without cross-examination, since the law presumes that a person about to die does not lie.
- It need not be recorded by a Magistrate, but the person recording should be satisfied that the maker was in a fit state of mind (Laxman v. State of Maharashtra, 2002).
- Corroboration is not a rule of law, but a court should be satisfied that it is voluntary and truthful (Khushal Rao v. State of Bombay, 1958).
- Where there are several declarations, the court must reconcile them, and inconsistencies reduce the weight.
7. Other statements of relevance
- BSA 26(2) and others (IEA 32(2) to (8)): statements made in the ordinary course of business, against the maker's interest, and opinions of public rights.
- Statements in former proceedings (BSA 27, IEA 33), where the witness is dead or cannot be found, and the parties are the same.
- Entries in public records and books of account (BSA 28 and 29 onwards), as supporting evidence.
8. Expert opinion
- BSA 39 (IEA 45): the opinion of an expert on foreign law, science, art, handwriting or finger impressions is relevant when the court must form an opinion on those matters.
- BSA 40 (IEA 45A): the opinion of an Examiner of Electronic Evidence under the Information Technology Act.
- BSA 41 (IEA 47): the opinion of a person acquainted with handwriting.
An expert opinion is not binding. A court gives it weight according to the expert's qualifications, the reasons given and the corroboration (Murari Lal v. State of Madhya Pradesh, 1980). Medical evidence supports or contradicts eyewitnesses, but ocular evidence prevails unless the medical evidence rules out the version completely.
9. A problem-answer pattern
A is arrested for murder. In police custody he tells the officer that he killed B and that he threw the knife in the river behind his house. The knife is found there. Answer in four steps:
- The confession to the police is inadmissible under BSA 23(1).
- Under BSA 23(2), only the part that distinctly relates to the fact discovered, that the knife was in the river behind his house, is admissible.
- The statement that he killed B cannot be proved.
- The recovery of the knife is a relevant fact, and its weight depends on the other evidence.
Common traps judicial exams set here
- Admitting the whole police statement under the discovery rule. Only the part distinctly relating to the discovery.
- Treating admission and confession as the same. A confession is an admission of guilt in a criminal case.
- Requiring a Magistrate to record a dying declaration. It is helpful but not required.
- Treating a co-accused's confession as substantive evidence. It only lends assurance.
- Quoting Evidence Act numbers for a post-2024 trial. Cite the BSA first.
Memory aids
- "22 threat, 23 police and discovery, 24 co-accused, 26 dying, 39 expert": the BSA numbers.
- "Distinctly relates": the discovery test.
- "Fit state of mind": the test for a dying declaration.
Summary
The BSA keeps the structure of the old Act: relevant facts and res gestae, admissions, confessions, dying declarations and expert opinion. Confessions to the police are inadmissible except for the discovery of a fact.
Dying declarations are admissible without oath if voluntary and truthful, a co-accused's confession only lends assurance, and expert opinion is advisory and not binding.
Exam protocol
- Cite the BSA section with the IEA section.
- Ask relevance, admissibility and weight in that order.
- Admit only the distinct part under the discovery rule.
