Evidence law updates: Recent rulings with practical impact

Trial courts are where most cases are won or lost on evidence. A strong claim can fail because a document was not properly proved, and a weak one can survive because the other side did not object in time. Evidence law is largely procedural, but its practical effect on the outcome is considerable.

A new statute, familiar principles

The Bharatiya Sakshya Adhiniyam, 2023 replaces the Indian Evidence Act, 1872. Much of the structure and many of the core principles carry over: the distinction between oral and documentary evidence, the rules on primary and secondary evidence, the treatment of admissions and confessions, and the burden of proof. The Adhiniyam gives electronic records more explicit treatment and renumbers many provisions. Counsel should work from the current text and check how the courts are applying it.

Electronic records

Emails, messages, call records and CCTV footage are now routine exhibits. The law treats an electronic record as a document, and the principle that such a record is not to be denied admissibility merely because it is electronic is now expressly stated. Admissibility is, however, subject to compliance with the statutory conditions, which include a certificate describing the record and the device from which it was produced.

The courts have repeatedly emphasised the importance of that certificate. It should be prepared when the record is collected, and not in a hurry at trial. It should be accurate about the device, the manner of extraction and the person responsible, and it should be signed by the right person. The Adhiniyam prescribes a certificate in a specified form, including an expert’s part, so the current format should be followed.

Proving ordinary documents

• Mark documents through a witness who can speak to them, rather than merely filing them. A document that is filed but not proved is not evidence of its contents.
• Where a document is a copy, lay the foundation for secondary evidence by explaining why the original is unavailable.
• Raise objections to admissibility when the document is tendered. An objection to the mode of proof that is not taken at that stage is generally treated as waived.
• Check whether an instrument is properly stamped and, where required, registered. Insufficient stamping and non-registration raise separate issues that can affect whether the document may be relied on.

Witnesses and cross-examination

Evidence is usually led by affidavit in chief, followed by cross-examination. The cross-examination is where credibility is tested, and a witness who has not been taken carefully through the documents beforehand is exposed. Preparing witnesses on the chronology and the documents is among the most useful steps a litigant can take.

Preparation is the real update

The most useful habit is to prepare a proof plan at the outset. For each fact in dispute, identify which document or witness will prove it, and what formalities that route requires. Gaps found early can often be fixed. Gaps found at trial usually cannot.

A note on authorities

Decisions of the Supreme Court and the High Courts in this area continue to develop, and the transition to the new Adhiniyam is producing fresh questions. Any specific case should be checked against current authority.