BSA MCQs for CLAT PG, Page 2

Section 138 of the Bharatiya Sakshya Adhiniyam, 2023 (corresponding to Section 133 of the Indian Evidence Act, 1872) provides that an accomplice shall be a competent witness against an accused person, and that a conviction is not illegal if it proceeds upon the uncorroborated testimony of an accomplice. Section 138 BSA must be read alongside Section 119 Illustration (b) BSA which provides that the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. The combined effect is that while there is no legal bar to convicting on the uncorroborated evidence of an accomplice, as a rule of prudence courts require corroboration in material particulars. In Bhuboni Sahu v. The King (AIR 1949 PC 257), the Privy Council elaborated the principles applicable to accomplice evidence: an accomplice is likely to be untruthful because he has a motive to minimise his own guilt, he hopes for pardon, and he may be generally dishonest. The corroboration must be independent of the accomplice's testimony and must identify the accused in connection with the crime, not merely confirm that the crime was committed. An important corollary is that one accomplice cannot corroborate another, because tainted evidence does not lose its taint by repetition. The distinction between an accomplice who becomes an approver (after being granted pardon under Section 343 BNSS 2023) and a co-accused is significant: the co-accused's confession under Section 24 BSA can only be used to corroborate other evidence and cannot form the primary basis of conviction against the other accused.

The allocation of the burden of proof is a fundamental aspect of the Bharatiya Sakshya Adhiniyam, 2023. Section 104 BSA (corresponding to Section 101 IEA) establishes the general rule: whoever desires a court to give judgment on the basis of certain facts must prove those facts. The burden rests on the party who asserts the affirmative, based on the principle that it is easier to prove an affirmative than a negative. In criminal proceedings, the burden always rests on the prosecution to prove the charge beyond reasonable doubt; the accused is presumed innocent. Section 108 BSA (Section 105 IEA) creates a specific exception: when the accused claims the benefit of any exception under the BNS 2023 (such as insanity or private defence), the burden of proving the existence of circumstances bringing the case within the exception lies on the accused. The court shall presume the absence of such circumstances. The accused need only prove the exception on the balance of probabilities, not beyond reasonable doubt. In addition, Section 118 BSA (Section 113B IEA) creates a mandatory statutory presumption in dowry death cases: when it is shown that soon before the death the woman was subjected to cruelty or harassment in connection with demand for dowry, the court SHALL presume that the accused caused the dowry death. Sher Singh v. State of Haryana (2015) 3 SCC 724 interpreted the word 'shown' in Section 113B IEA (now Section 118 BSA) to mean 'proved on the balance of probabilities' and held that once this initial burden is discharged, the mandatory presumption kicks in and the accused bears the burden of rebutting it beyond reasonable doubt.

The Bharatiya Sakshya Adhiniyam, 2023 maintains the Best Evidence Rule through complementary provisions. Section 50 BSA (corresponding to Section 60 IEA) requires that oral evidence must in all cases be direct: if the fact was seen, the witness must have seen it; if it was heard, the witness must have heard it. This section establishes the directness requirement for testimonial evidence and by implication the hearsay exclusion rule, since a witness cannot testify to what someone else told him. Section 94 BSA (corresponding to Section 91 IEA) embodies the Best Evidence Rule in relation to documentary evidence: when the terms of a contract, grant, or disposition of property have been reduced to writing, or any matter is required by law to be in writing, those terms can only be proved by the document itself or by permissible secondary evidence. Oral evidence to prove the terms of such document is excluded. The Supreme Court in Roop Kumar v. Mohan Thedani (AIR 2003 SC 2418) observed that wherever written instruments are appointed by law or by the contract of the parties, any other evidence is excluded to prove the contents of those instruments. Section 95 BSA (Section 92 IEA) excludes oral evidence that would contradict, vary, add to, or subtract from the terms of a written document. However, Section 95 BSA provides six exceptions including: facts showing the document is invalid (fraud, misrepresentation, failure of consideration), a separate oral agreement constituting a condition precedent, a subsequent oral agreement rescinding or varying the contract, and usage or custom that gives special meaning to words. These exceptions recognise that while written documents should be enforced as written, certain contextual facts are necessary for complete justice.

The doctrine of estoppel under the Bharatiya Sakshya Adhiniyam, 2023 operates as a rule of evidence that prevents a party from contradicting a previous representation on which another party has relied to their detriment. Section 121 BSA (corresponding to Section 115 IEA) provides that when one person by his declaration, act, or omission intentionally caused or permitted another to believe a thing to be true and to act upon that belief, neither that person nor his representative shall be allowed to deny the truth of that thing in any suit or proceeding. This is the general estoppel by representation. Section 122 BSA provides for tenant-landlord estoppel: a tenant cannot dispute the title of his landlord during the continuance of the tenancy. Section 123 BSA provides for estoppel of an acceptor of a bill of exchange: the acceptor cannot deny the drawer's authority to draw and endorse the bill. Beyond the statutory provisions, Indian courts have recognised the doctrine of promissory estoppel as an equitable principle. In Motilal Padampat Sugar Mills v. State of U.P. (AIR 1979 SC 621), the Supreme Court held that promissory estoppel applies even against the government: if the government makes a clear and unequivocal promise, and the promisee relies on it and alters his position, the government is bound to keep its promise. The three elements are: a clear representation or promise; the promisee's reliance on it; and alteration of position. The doctrine does not apply where the government invokes overriding considerations of public interest, but the government must establish that public interest was genuinely engaged. M.C. Verghese v. T.J. Ponnan (AIR 1970 SC 1876) clarified that the privilege of non-disclosure for marital communications under Section 128 BSA continues even after the marriage ends.

The Bharatiya Sakshya Adhiniyam, 2023 recognises several categories of privileged communications that are protected from compelled disclosure in judicial proceedings. Section 132 BSA (corresponding to Section 126 IEA) provides for legal professional privilege: an advocate is forbidden from disclosing without the client's consent any communication made to him in the course of his professional employment, the contents of any document seen in that employment, or any advice given. This privilege belongs to the client and continues even after the professional relationship ends. The privilege does not apply when the communication was made for an unlawful purpose. Section 128 BSA (Section 122 IEA) provides for marital communications privilege: a spouse cannot be compelled to and is not even permitted to disclose communications made by the other spouse during marriage; as held in M.C. Verghese v. T.J. Ponnan (AIR 1970 SC 1876), this privilege continues even after the marriage is dissolved. Section 129 BSA (Section 123 IEA) provides for state documents privilege: no one may give evidence derived from unpublished official records relating to affairs of State without the permission of the head of the relevant department, who may withhold permission if disclosure would injure public interest. In State of U.P. v. Raj Narain (AIR 1975 SC 865), the Supreme Court held that courts have the power to inspect such documents to determine if the claim of privilege is justified. Section 130 BSA (Section 124 IEA) provides for official communications privilege: a public officer need not disclose communications made to him in official confidence where he considers that public interest would suffer by the disclosure.

Sections 115 to 120 of the Bharatiya Sakshya Adhiniyam, 2023 create specific presumptions that shift evidentiary burdens in defined circumstances. Section 116 BSA (Section 112 IEA) creates a conclusive presumption of legitimacy: the birth of a child during a valid marriage is conclusive proof that the husband is the father, rebuttable only by showing that the parties had no access to each other when the child could have been conceived. In Dukhtar Jahan v. Mohammed Farooq (1987), the Supreme Court held that courts should be inclined to uphold legitimacy unless the facts are so compelling as to necessarily show the child could not have been begotten to the husband. In Dipanwita Roy v. Ronobroto Roy (2015) 1 SCC 365, the Supreme Court held that DNA test results can be used to rebut this presumption, as they represent a scientifically accurate method of determining paternity not available when the original law was enacted. Section 120 BSA (Section 114A IEA) creates a mandatory presumption in prosecutions for rape under Section 64(2) BNS: where sexual intercourse by the accused is proved, consent is in issue, and the woman states in evidence that she did not consent, the court shall presume absence of consent. Section 117 BSA (Section 113A IEA) provides that the court may presume abetment of suicide if the woman committed suicide within seven years of marriage and was subjected to cruelty by her husband or relatives. Section 118 BSA (Section 113B IEA) creates a mandatory presumption in dowry death cases when cruelty in connection with dowry demand before death is shown.