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BSA

May Presume & Shall Presume

Introduction

In the realm of legal proceedings, proving every single fact with direct evidence can be an exhaustive and sometimes impossible task. To ensure the efficient delivery of justice, the law employs “Presumptions.” Under the Bharatiya Sakshya Adhiniyam (BSA), which has modernized the framework previously governed by the Indian Evidence Act, 1872, presumptions are categorized based on the level of certainty and the degree of discretion granted to the judge.

The concepts of “May Presume” and “Shall Presume” represent the two primary pillars of rebuttable presumptions, dictating when a court can choose to accept a fact and when it is compelled to do so by statute. Understanding these definitions is crucial for any legal practitioner, as they dictate the shift in the “Burden of Proof” during a trial.

1. May Presume: Discretionary Presumption

Defined under Section 2(1)(m) of the BSA, this category grants the court the power of choice. It is often referred to as a Presumption of Fact.

  • The Rule: The court may either regard a fact as proved until it is disproved or, if it feels the circumstances are unclear, it may call for independent proof of that fact.
  • Source: These are generally based on logic, common sense, and the natural course of human events.
  • Example (Section 119): If a person is found in possession of a stolen luxury watch two hours after a robbery, the court may presume they are the thief. However, if that person is a known jeweler, the court might exercise its discretion to ask for more evidence before making that assumption.

Relevant Case Law

In Chanderaswar v. State, the court established that “May Presume” is a permissive condition. The court is not bound to believe the existence of a fact; it is a matter of judicial suspicion that can be confirmed or dismissed based on the judge’s prudence.

2. Shall Presume: Mandatory Presumption

Defined under Section 2(1)(n) of the BSA, this category is a command from the legislature to the judiciary. It is a Presumption of Law.

  • The Rule: The court must regard the fact as proved. It has no choice but to accept it unless and until the opposing party provides evidence to “rebut” or disprove it.
  • Source: These are created by statute to protect social interests or address specific crimes where evidence is hard to obtain.
  • Example (Section 118): In cases involving the suicide of a married woman within seven years of marriage, if it is shown she was subjected to cruelty by her husband, the court shall presume that the husband abetted the suicide. The burden then falls entirely on the husband to prove his innocence.

Relevant Case Law

In State of Madras v. Vaidyanatha Iyer, the Supreme Court held that in “Shall Presume” scenarios, the court cannot wait for the prosecution to prove the fact further; it must immediately assume the fact is true and ask the defense to disprove it.

Comparative Analysis: The Shift in Burden

FeatureMay Presume (Section 2(1)(m))Shall Presume (Section 2(1)(n))
Court’s PowerDiscretionary (Option to presume)Mandatory (Required to presume)
TypePresumption of FactPresumption of Law
Initial ProofThe court can demand proof upfront.The court cannot demand proof; it is assumed.
RebuttabilityEasily rebutted by showing contrary facts.Rebuttable, but requires strong evidence from the opponent.
Common SectionsSec 92 (Old docs), Sec 119 (Stolen goods)Sec 81 (Certified copies), Sec 118 (Abetment)

Conclusion

The distinction between “May Presume” and “Shall Presume” under the BSA represents the balance between judicial intuition and legislative intent. “May Presume” allows the court to act as a rational observer of human behavior, using its discretion to bridge gaps in evidence. Conversely, “Shall Presume” acts as a powerful legal tool used by the state to ensure that in specific, sensitive circumstances—such as marital cruelty or official documentation—the law leans in favor of a specific conclusion unless proven otherwise.

Confession under the Bharatiya Sakshya Adhiniyam, 2023 (BSA)

1. Introduction

Confession is one of the most delicate and crucial aspects of criminal jurisprudence. While a confession may appear to be the strongest form of evidence, the law treats it with caution because of the possibility of coercion, inducement, threat, or promise. The Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaces the Indian Evidence Act, 1872, substantially retains the classical safeguards governing confessions while aligning them with constitutional principles under Article 20(3) (right against self-incrimination) and Article 21 (right to fair trial).

Under the BSA, confessions are admissible only when they are voluntary, truthful, and legally obtained, ensuring a balance between effective prosecution and protection of individual liberty.

2. Meaning and Concept of Confession

The term confession is not exhaustively defined in the BSA. However, judicial interpretation provides clarity.

📌 Pakala Narayana Swami v. Emperor (1939):
A confession is a statement made by an accused person admitting, directly or substantially, all the facts constituting the offence.

Thus, every confession is an admission, but every admission is not a confession.

3. Confession Caused by Inducement, Threat or Promise

Section 23 – Inadmissible Confession

Under Section 23 of the BSA, a confession is irrelevant if it appears to the court to have been caused by:

  • Any inducement
  • Threat
  • Promise

having reference to the charge, proceeding from a person in authority, and sufficient to give the accused reasonable grounds to believe that by making it he would gain an advantage or avoid an evil of a temporal nature.

📌 State of Punjab v. Barkat Ram (1962)

Illustration:
A police officer promises leniency if the accused confesses—such confession is inadmissible.

4. Confession to Police Officer

Section 24 – Confession to Police Officer

Section 24 declares that no confession made to a police officer shall be proved against an accused.

📌 State of U.P. v. Deoman Upadhyaya (1960)
This provision protects the accused from coercive police practices.

5. Confession While in Police Custody

Section 25 – Confession in Police Custody

A confession made while the accused is in police custody is inadmissible, unless it is made in the immediate presence of a Magistrate.

📌 Aghnoo Nagesia v. State of Bihar (1966)

Rationale:
Ensures judicial oversight and voluntariness.

6. Discovery of Facts Pursuant to Confession

Section 26 – Discovery of Fact

When any fact is discovered in consequence of information received from an accused person in custody, only so much of the information as distinctly relates to the fact discovered is admissible.

📌 Pulukuri Kottaya v. King Emperor (1947)

Example:
“I buried the knife under the neem tree.”
Only the part relating to the discovery of the knife is admissible.

7. Confession Made After Removal of Inducement

Section 27 – Subsequent Confession

If a confession is made after the removal of inducement, threat, or promise, it becomes admissible.

📌 Kashmira Singh v. State of M.P. (1952)

8. Confession Made Under a Promise of Secrecy

Section 28 – Promise of Secrecy

A confession is not inadmissible merely because it was made:

  • Under a promise of secrecy
  • In consequence of deception
  • When drunk
  • In response to questions

Provided it is voluntary.

9. Confession Made Under Mistake

Section 29 – Confession Under Mistake

A confession is admissible even if made under a mistake of fact, provided it is otherwise voluntary.

📌 R. v. Baldry (1852)

10. Confession of Co-Accused

Section 30 – Confession of Co-Accused

When multiple persons are tried jointly, the confession of one accused may be taken into consideration against others, but cannot be the sole basis of conviction.

📌 Kashmira Singh v. State of M.P. (1952)

11. Retracted Confession

A retracted confession is admissible but must be corroborated.

📌 Pyare Lal Bhargava v. State of Rajasthan (1963)

12. Extra-Judicial Confession

Extra-judicial confession is a confession made to a person other than a magistrate or police officer.

📌 State of U.P. v. M.K. Anthony (1985)
Extra-judicial confession can form the basis of conviction if:

  • It is voluntary
  • It is truthful
  • It inspires confidence

13. Judicial Confession

A confession made before a Magistrate under Section 164 of BNSS is called a judicial confession and carries high evidentiary value.

📌 Dagdu v. State of Maharashtra (1977)

14. Constitutional Safeguards

  • Article 20(3) – Protection against self-incrimination
  • Article 21 – Right to fair procedure

📌 Nandini Satpathy v. P.L. Dani (1978)

15. Illustrative Examples

  1. Police Custody Confession – Inadmissible
  2. Magistrate Confession – Admissible
  3. Discovery Statement – Partly admissible
  4. Co-Accused Confession – Corroborative only

16. Conclusion

The law relating to confession under the Bharatiya Sakshya Adhiniyam, 2023 reflects a careful balance between the needs of criminal justice and the protection of individual rights. While confessions may provide valuable evidence, the BSA insists on voluntariness, legality, and judicial scrutiny. The emphasis on safeguards ensures that justice is not secured at the cost of constitutional liberties.

Admission under the Bharatiya Sakshya Adhiniyam, 2023 (BSA)

1. Introduction

The law of evidence is founded on the principle that truth is best established by reliable and relevant facts. Among various forms of evidence, admission occupies a special and privileged position because it represents a statement made by a person against his own interest. The rationale is grounded in human conduct—no rational person would ordinarily make a statement detrimental to himself unless it were true.

The Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaces the Indian Evidence Act, 1872, retains the classical principles governing admissions while adapting them to contemporary realities, particularly by recognising electronic and digital admissions. Admissions under the BSA play a decisive role in both civil and criminal proceedings, often dispensing with the necessity of strict proof.

2. Meaning and Definition of Admission

Section 15 – Admission

Section 15 of the BSA defines an admission as a statement, oral, documentary, or electronic, which suggests any inference as to a fact in issue or a relevant fact, and which is made by persons and under circumstances mentioned in the Act.

This definition highlights three essential elements:

  1. There must be a statement
  2. The statement must relate to a fact in issue or relevant fact
  3. It must be made by a legally competent person

Unlike confessions, admissions are not confined to criminal cases and have a wider evidentiary scope.

📌 Raghunath Prasad v. Commissioner of Income Tax (1956):
An admission is a statement suggesting an inference, not necessarily a direct acknowledgment.

3. Nature and Evidentiary Value of Admissions

Admissions are substantive evidence and may be relied upon independently of corroboration. However, they are not conclusive proof of the facts admitted. The court retains discretion to evaluate their truthfulness, voluntariness, and context.

📌 Nagindas Ramdas v. Dalpatram Ichharam (1974):
The Supreme Court held that admissions are the best evidence against the party making them and can be the basis of a decree.

📌 Avadh Kishore Das v. Ram Gopal (1979):
Admissions are not conclusive but shift the burden of proof.

4. Persons Whose Admissions Are Relevant

Section 16 – Admissions by Parties to Proceedings

Admissions made by parties to the suit or proceeding are directly relevant. These may be contained in pleadings, affidavits, correspondence, or electronic communication.

Illustration:
In a money recovery suit, the defendant admits liability through a WhatsApp message.

Section 17 – Admissions by Agents and Representatives

Statements made by authorised agents, advocates, or representatives within the scope of their authority are admissible as admissions of the principal.

📌 Himalayan Cooperative Group Housing Society v. Balwan Singh (2015):
Admissions by counsel bind the client if made within authority.

Section 18 – Admissions by Persons Having Pecuniary or Proprietary Interest

Admissions made by persons who have a financial or ownership interest in the subject matter are relevant.

Illustration:
A mortgagee admitting receipt of loan repayment.

Section 19 – Admissions by Persons from Whom Interest Is Derived

Statements made by predecessors-in-title bind successors-in-interest.

📌 Sita Ram Bhau Patil v. Ramchandra Nago Patil (1977)

5. Forms of Admissions

(a) Oral Admissions

Spoken statements made in court or outside court.

(b) Documentary Admissions

Admissions contained in:

  • Contracts
  • Letters
  • Pleadings
  • Affidavits

(c) Electronic Admissions

Under the BSA, electronic records such as:

  • Emails
  • SMS
  • WhatsApp chats
  • Recorded calls
    are expressly recognised.

📌 Trimex International FZE Ltd. v. Vedanta Aluminium Ltd. (2010):
Emails acknowledging contractual obligations constitute valid admissions.

6. Admissions by Conduct

Admissions may also be implied from conduct. Silence or failure to deny allegations may amount to admission where denial is reasonably expected.

📌 Union of India v. Ibrahim Uddin (2012):
Non-traverse of pleadings amounts to admission.

Illustration:
Failure to reply to a legal notice alleging debt.

7. Admissions in Civil Proceedings

Admissions in civil cases have great probative value and may form the sole basis of judgment.

📌 Uttam Singh Duggal & Co. Ltd. v. United Bank of India (2000):
A clear admission entitles the plaintiff to a decree without trial.

📌 Sushil Kumar Jain v. Manoj Kumar (2009):
Admissions in pleadings are binding unless withdrawn.

8. Admissions in Criminal Proceedings

Admissions in criminal cases are relevant, but when an admission amounts to a confession, it must comply with stricter safeguards.

📌 Narayan Bhagwantrao Gosavi v. Gopal Vinayak Gosavi (1960):
Admissions must be voluntary and true.

Example:
Admission of ownership of a weapon is relevant, but not conclusive of guilt.

9. Admissions and Estoppel

Section 22 – Effect of Admissions

Admissions may operate as estoppel, preventing a person from denying what he previously admitted.

📌 B.L. Sreedhar v. K.M. Munireddy (2003)

10. Withdrawal and Explanation of Admissions

Admissions can be:

  • Explained
  • Withdrawn

But the burden lies on the maker to prove mistake, coercion, or misinterpretation.

📌 Basant Singh v. Janki Singh (1967)

11. Distinction between Admission and Confession

AdmissionConfession
Applies to civil & criminal casesOnly criminal cases
May relate to any factRelates to guilt
Wider scopeNarrow scope

12. Practical Illustrations

  1. Property Case:
    A seller admits in an email receipt of full consideration—binding admission.
  2. Commercial Dispute:
    A company director admits debt in board minutes—company is bound.
  3. Criminal Case:
    Accused admits presence at scene—relevant but not proof of guilt.

13. Conclusion

Admission under the Bharatiya Sakshya Adhiniyam, 2023 continues to be a cornerstone of evidentiary law, embodying principles of fairness, efficiency, and judicial economy. With the inclusion of electronic records, the scope of admissions has expanded significantly, making the law responsive to modern modes of communication. While admissions are powerful evidence, courts exercise caution to ensure they are voluntary, unambiguous, and reliable.

Admissions simplify litigation, reduce unnecessary trials, and promote substantive justice—making them indispensable to the administration of justice in India.

Digital Evidence under the Bharatiya Sakshya Adhiniyam, 2023

1. Introduction

With the exponential growth of technology, electronic records have become an integral part of criminal and civil adjudication. Emails, WhatsApp messages, call detail records, CCTV footage, digital photographs, social media posts, server logs, and cloud-stored data are now frequently relied upon as evidence. Recognising this reality, the Indian legislature replaced the Indian Evidence Act, 1872 with the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which came into force along with the Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Nyaya Sanhita (BNS).

The BSA modernises evidentiary rules by explicitly recognising digital and electronic evidence, simplifying procedures, and aligning the law with contemporary technological practices.

2. Concept of Digital / Electronic Evidence

Digital evidence refers to information of probative value stored or transmitted in electronic form. It includes data generated, sent, received, or stored through electronic devices such as computers, mobile phones, servers, and digital networks.

Under the BSA, the term “electronic record” has been retained and expanded in line with the Information Technology Act, 2000, thereby ensuring consistency across statutes.

3. Statutory Recognition of Digital Evidence under BSA

Section 2 – Definitions

Section 2 of the BSA adopts an inclusive definition of “electronic records”, which includes:

  • Emails
  • Messages (SMS, WhatsApp, Telegram, etc.)
  • Digital photographs and videos
  • Audio recordings
  • CCTV footage
  • Computer output
  • Data stored in cloud servers

This definition ensures that modern and future forms of electronic communication fall within the evidentiary framework.

4. Electronic Records as Documentary Evidence

Section 61 – Documentary Evidence

Section 61 of the BSA expressly states that documentary evidence includes electronic records. This is a significant departure from the traditional paper-centric approach of the Evidence Act, 1872.

👉 Legal Impact:
Electronic records now stand at par with physical documents, eliminating ambiguity regarding their evidentiary status.

5. Primary and Secondary Electronic Evidence

Section 62 – Primary Evidence

Primary evidence refers to the original electronic record itself, such as:

  • The original hard drive
  • The original mobile phone
  • Original memory card or server data

In digital context, courts recognise that “original” is conceptual, as electronic data can be reproduced identically.

Section 63 – Secondary Evidence

Secondary evidence includes:

  • Computer printouts
  • Copies stored in CDs, DVDs, pen drives
  • Screenshots
  • Mirror images of digital storage

These are admissible subject to statutory compliance, especially certification requirements.

6. Admissibility of Electronic Evidence

Section 65B (Retained in Substance under BSA) – Computer Output

One of the most crucial provisions governing digital evidence is Section 65B, which continues in substance under the BSA.

Conditions for Admissibility:

For a computer output to be admissible:

  1. The computer was used regularly
  2. Information was fed in the ordinary course of activities
  3. The computer was operating properly
  4. The information is derived from such data

Section 65B Certificate

A certificate must accompany the electronic record, specifying:

  • The device used
  • The manner of production
  • Authenticity of the data
  • Signature of a responsible official

👉 This certificate is mandatory unless the original device itself is produced before the court.

7. Oral Evidence and Digital Records

Section 55 – Oral Evidence

Oral evidence cannot substitute the contents of an electronic record unless permitted by law. Witnesses may testify about the existence, operation, or identification of electronic records but not override documentary digital proof.

8. Presumptions Relating to Electronic Evidence

Section 85B – Presumption as to Electronic Records

Courts may presume:

  • Integrity of electronic records
  • Authenticity of secure electronic records
  • Proper functioning of electronic systems

These presumptions reduce the burden of proof, especially in routine digital transactions.

Section 90A – Presumption as to Electronic Records Five Years Old

Electronic records older than five years may enjoy a presumption of authenticity, similar to old documents under traditional evidence law.

9. Digital Evidence and Expert Opinion

Section 45 – Expert Evidence

Courts may rely on:

  • Cyber forensic experts
  • Digital analysts
  • Hash value examiners

Expert testimony becomes crucial in cases involving:

  • Tampering
  • Deepfakes
  • Altered videos
  • Metadata manipulation

10. Judicial Approach and Case Laws

Although the BSA is recent, judicial precedents under the Evidence Act, 1872 remain relevant, as the principles are retained.

1. Anvar P.V. v. P.K. Basheer (2014)

The Supreme Court held that Section 65B certificate is mandatory for admissibility of electronic evidence. Oral evidence cannot replace statutory requirements.

2. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020)

The Court reaffirmed Anvar P.V. and clarified:

  • Certificate under Section 65B is compulsory
  • It can be produced at a later stage
  • Courts must insist on statutory compliance

3. State (NCT of Delhi) v. Navjot Sandhu (Parliament Attack Case, 2005)

Earlier allowed electronic evidence without certificate, but this position was overruled by Anvar P.V.

4. Tomaso Bruno v. State of Uttar Pradesh (2015)

The Court emphasised the importance of CCTV footage and electronic evidence and held that adverse inference may be drawn if such evidence is withheld.

5. Shafhi Mohammad v. State of Himachal Pradesh (2018)

Relaxed the requirement of certificate in certain circumstances, but this was later clarified and restricted by Arjun Panditrao.

11. Digital Evidence and Fair Trial

Digital evidence directly impacts:

  • Article 21 – Right to Fair Trial
  • Transparency in investigation
  • Speedy justice

Improper handling or exclusion of electronic evidence may vitiate trials, especially in cybercrime, economic offences, and terrorism-related cases.

12. Challenges in Digital Evidence

Despite statutory recognition, challenges persist:

  • Possibility of manipulation and deepfakes
  • Lack of forensic infrastructure
  • Data privacy concerns
  • Chain of custody issues

The BSA seeks to address these through certification, expert evidence, and presumptions.

13. Conclusion

The Bharatiya Sakshya Adhiniyam, 2023 marks a progressive shift from colonial evidentiary principles to technology-centric adjudication. By formally recognising digital evidence, prescribing clear admissibility standards, and incorporating judicial safeguards, the BSA strengthens the evidentiary framework of Indian courts. However, effective implementation depends on judicial awareness, forensic capacity, and strict adherence to statutory requirements.

Last Seen Theory (Section 7 of the Indian Evidence Act, 1872 / Section 5 of the Bharatiya Sakshya Adhiniyam, 2023)

1. Introduction

The Last Seen Theory is a significant principle of circumstantial evidence in criminal jurisprudence. It is based on the premise that if a person was last seen alive in the company of the accused and is later found dead within a short span of time, it gives rise to a strong presumption that the accused is responsible for the death of that person.

Although this theory alone cannot conclusively establish guilt, it forms a vital link in the chain of circumstances when supported by corroborative evidence like motive, recovery of weapon, or conduct of the accused.

2. Statutory Basis: Section 7 of the Indian Evidence Act / Section 5 of the Bharatiya Sakshya Adhiniyam, 2023

Under the Indian Evidence Act, 1872, Section 7 relates to facts which are the occasion, cause, effect, or opportunity of relevant facts. It provides that facts which show the occasion, cause, or effect of the occurrence, or which constitute the state of things under which they happened, are relevant.

In the Bharatiya Sakshya Adhiniyam, 2023 (BSA), this provision is retained under Section 5, maintaining the same essence — that facts forming part of the same transaction or explanatory circumstances surrounding a crime are relevant to establish the link between the accused and the occurrence.

The Last Seen Theory arises from this principle — the “fact of last seen” becomes relevant because it forms an immediate and proximate link between the accused and the deceased prior to death.

3. Meaning and Essence of the Theory

The Last Seen Theory operates on a logical inference drawn from human conduct and probability. When two people are seen together, and shortly thereafter one of them is found dead, the natural inference is that the person last seen with the deceased bears some connection with the death.

In such circumstances, the burden shifts to the accused under Section 106 of the Evidence Act to explain how and when he parted company with the deceased. Failure to give a satisfactory explanation may justify an adverse inference.

4. Essential Conditions for Application

For the Last Seen Theory to be applicable, the following essential conditions must be satisfied:

  1. Proximity of Time and Place:
    The time gap between the deceased being last seen alive with the accused and the discovery of the dead body must be so small that the possibility of the offence being committed by another person is completely ruled out.
  2. Credibility of Witnesses:
    The witnesses who saw the accused and the deceased together must be credible and their statements must inspire confidence.
  3. Absence of Intervening Circumstances:
    There should not be any other plausible explanation or evidence indicating the presence of another person who could have committed the crime.
  4. Corroboration:
    The theory by itself cannot establish guilt beyond reasonable doubt. It must be corroborated by other circumstantial evidence such as motive, recovery of incriminating articles, or medical evidence.

5. Judicial Interpretation and Case Laws

The Indian judiciary has consistently recognized the Last Seen Theory as an important piece of circumstantial evidence, though not conclusive in itself. Some landmark decisions include:

(a) Bodhraj v. State of Jammu & Kashmir, (2002) 8 SCC 45

The Supreme Court held that the Last Seen Theory comes into play when the time gap between the deceased being seen alive with the accused and the death is so small that the possibility of another person being the perpetrator becomes highly improbable. The Court observed that when the accused fails to explain how he parted company with the deceased, an adverse inference can be drawn against him.

(b) Satpal v. State of Haryana, (2010) 8 SCC 714

The Court reiterated that the Last Seen Theory is a strong circumstance against the accused if the time gap between the last seen and the death is narrow. However, it cannot be the sole basis of conviction unless supported by other corroborative evidence.

(c) Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172

The Court held that the Last Seen Theory by itself does not conclusively prove guilt unless the prosecution establishes the chain of circumstances unerringly pointing to the guilt of the accused. The Court emphasized the need for proximity in time and place to eliminate the possibility of any third-party involvement.

(d) State of Goa v. Sanjay Thakran, (2007) 3 SCC 755

The Court clarified that in cases where the time gap between last seen and death is wide, the Last Seen Theory loses its evidentiary value unless there are other strong incriminating circumstances.

6. Burden of Proof and Section 106 of the Evidence Act

When the prosecution successfully establishes that the deceased was last seen alive in the company of the accused, Section 106 of the Evidence Act comes into operation. It provides that when any fact is especially within the knowledge of any person, the burden of proving that fact lies upon him.

Thus, once the prosecution proves that the accused and the deceased were last seen together, the onus shifts to the accused to explain the circumstances under which they parted. If the accused fails to discharge this burden satisfactorily, the Court may presume his involvement in the crime.

7. Evidentiary Value and Limitations

While Last Seen Theory is a powerful circumstantial link, it is not by itself sufficient for conviction. Courts have repeatedly cautioned against relying solely on this theory without corroborative evidence. Its evidentiary strength depends on:

  • The closeness of time between last seen and death,
  • The credibility of witnesses, and
  • The absence of alternative explanations.

In cases where there is a long gap between last seen and death, or where the place of occurrence is not established, courts generally do not apply this theory conclusively.

8. Application under Bharatiya Sakshya Adhiniyam, 2023

Under the Bharatiya Sakshya Adhiniyam, 2023, the relevance of facts surrounding an event is codified in Section 5, which mirrors the principle of Section 7 of the Evidence Act.
The concept of Last Seen Theory thus continues to remain valid under the new evidentiary framework. It is used by the prosecution to establish a chain of circumstantial evidence leading to the inference of guilt, particularly when there are no direct witnesses to the crime.

9. Illustrative Example

Suppose ‘A’ and ‘B’ are seen leaving a restaurant together at 10 p.m. by witnesses. The next morning, ‘B’ is found dead near that location. If ‘A’ fails to explain how he parted company with ‘B’ after 10 p.m., and there is no evidence of anyone else’s involvement, the Last Seen Theory can be invoked against ‘A’.

However, if ‘A’ can show that they separated earlier or that someone else met ‘B’ later, the presumption under this theory may be rebutted.

10. Conclusion

The Last Seen Theory plays a crucial role in cases based on circumstantial evidence where direct eyewitnesses are absent. It bridges the gap between suspicion and proof by linking the presence of the accused with the occurrence of the crime.

However, courts have rightly cautioned that mere last seen evidence cannot by itself result in conviction. It must form part of a complete chain of circumstances, leaving no reasonable doubt about the accused’s guilt.

When applied judiciously and corroborated with other evidence, the Last Seen Theory becomes a vital instrument in ensuring justice under both the Indian Evidence Act, 1872 and the Bharatiya Sakshya Adhiniyam, 2023.

RES GESTAE UNDER THE BHARATIYA SAKSHYA ADHINIYAM, 2023

The doctrine of res gestae, literally meaning “things done,” is incorporated under Section 4 of the Bharatiya Sakshya Adhiniyam, 2023, which corresponds to Section 6 of the Indian Evidence Act, 1872. This provision creates an exception to the hearsay rule by permitting the admissibility of statements and acts that are so closely connected with the fact in issue as to form part of the same transaction.

The principle is grounded in the belief that spontaneous statements or actions made during or immediately after an event possess a high degree of credibility, as they are free from the influence of reflection or fabrication. In essence, res gestae covers those facts, statements, or acts that are inseparably linked to the main event or transaction, and therefore, explain or elucidate it.

Key Elements

  1. Same Transaction:
    The statement or act must be directly and integrally connected with the principal event or transaction in question.
  2. Contemporaneity:
    The statement or act should occur simultaneously with or immediately after the main event, leaving no significant time gap for deliberation.
  3. Spontaneity:
    The declaration must be instinctive and natural, made under the immediate pressure of the incident, without any opportunity for concoction or distortion.

Landmark Judicial Pronouncements

1. R v. Foster (1834) 6 C & P 325, 172 ER 1261
In this English case, the victim’s spontaneous exclamation after being struck by a vehicle was held admissible as part of the res gestae. The court underscored that such statements made under the stress of excitement, before the declarant has time to fabricate, possess inherent reliability.
Significance: It established the foundational principle that spontaneous statements closely connected with the occurrence are admissible, even though they would otherwise constitute hearsay.

2. Sukhar v. State of Uttar Pradesh (1999) 9 SCC 507
The Supreme Court admitted the victim’s spontaneous statement identifying the assailant as res gestae under Section 6 of the Evidence Act, as it was made contemporaneously with the shooting. However, the Court declined to convict the accused because the witness’s testimony lacked corroboration and was found unreliable.
Observation: The Court emphasized the necessity of a direct and immediate connection between the statement and the event to qualify under res gestae.

3. Uttam Sukhare v. State of Maharashtra (2008) 8 SCC 576
The Supreme Court elaborated on the parameters for determining whether a statement forms part of the same transaction. It held that the statement must be made during or immediately after the incident, leaving no scope for fabrication. The Court reiterated that the application of res gestae is highly fact-specific and must be evaluated cautiously to ensure the credibility of the evidence.

Conclusion

The principle of res gestae under Section 4 of the Bharatiya Sakshya Adhiniyam, 2023, plays a vital role in ensuring that spontaneous, contemporaneous declarations closely connected with a fact in issue are not excluded merely as hearsay. It strikes a balance between the rigidity of the hearsay rule and the necessity of admitting trustworthy evidence that genuinely reflects the circumstances of the occurrence. Courts, however, must apply this doctrine with prudence, ensuring that the statements admitted are truly part of the same transaction and bear an immediate connection with the fact in issue.