Sections 3-4 Evidence Act vs Section 2 BSA — Definitions (Proved, Document, Evidence, Presumptions)

In India, Section 2 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaced the definitions in Sections 3 and 4 of the Indian Evidence Act, 1872 (IEA). "Document" now includes electronic and digital records, "evidence" covers statements given electronically, Section 2(2) imports IT Act, BNSS and BNS meanings, and "India" is no longer defined.

At a glance

What changed

• Opening words — Minor edit. "In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context" becomes "In this Adhiniyam, unless the context otherwise requires".
• Structure — Modified. The unnumbered s.3 definitions and the three s.4 terms become clauses (a) to (l) of s.2(1), in alphabetical order.
• "Court", (a) — Minor edit. Wording identical; only the closing punctuation changes.
• "conclusive proof", (b), from IEA s.4 — Minor edit. "When one fact is declared by this Act to be conclusive proof of another" becomes "'conclusive proof' means when one fact is declared by this Adhiniyam to be conclusive proof of another". The consequence is unchanged.
• "disproved", (c) — Minor edit. "A fact is said to be disproved when" becomes "'disproved' in relation to a fact, means when". The prudent-man test is unchanged.
• "document", (d) — Expanded. "expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means" becomes "expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means". The definition ends "and includes electronic and digital records". Illustrations (i)-(v) carry over the old five, and Illustration (vi) is new.
• "evidence", (e) — Expanded. Oral evidence now covers "all statements including statements given electronically". Documentary evidence changes from "all documents including electronic records" (substituted by Act 21 of 2000, w.e.f. 17-10-2000) to "all documents including electronic or digital records".
• "fact", (f) — Minor edit. "anything" becomes "any thing"; illustrations (a)-(d) become (i)-(iv), and "a man" becomes "a person".
• "fact", illustration (e) — Omitted. "That a man has a certain reputation, is a fact." is not carried over.
• "facts in issue", (g) — Minor edit. "The expression "facts in issue" means and includes—" becomes "'facts in issue' means and includes"; the comma in "liability, or disability" goes. In the Explanation, "Civil Procedure" becomes "civil procedure". The illustrations are numbered (i)-(iv).
• "may presume", (h) — Minor edit. "Act" becomes "Adhiniyam", and the comma before "or may call for proof of it" is dropped.
• "not proved", (i) — Minor edit. "A fact is said not to be proved" becomes "A fact is said to be not proved".
• "proved", (j) — Minor edit. Wording identical; only the closing punctuation changes.
• "relevant", (k) — Minor edit. "One fact is said to be relevant to another when the one is connected with the other" becomes "A fact is said to be relevant to another when it is connected with the other".
• "shall presume", (l) — Minor edit. "Act" becomes "Adhiniyam".
• "India" — Omitted. The IEA definition is not carried over.
• Borrowed definitions, s.2(2) — Expanded. The IEA gave IT Act meanings to nine listed expressions (inserted by Act 21 of 2000, w.e.f. 17-10-2000). The BSA imports any undefined word that the IT Act 2000, the BNSS or the BNS defines.

Statutory text (relevant extract)

Section 3, Indian Evidence Act — extracts (footnote markers omitted; square brackets mark amended or inserted words):

"Document".––"Document" means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

["India".––"India" means the territory of India excluding the State of Jammu and Kashmir.]

[the expressions "Certifying Authority", "[electronic signature]", "[Electronic Signature Certificate]", "electronic form", "electronic records", "information", "secure electronic record", "secure digital signature" and "subscriber" shall have the meanings respectively assigned to them in the Information Technology Act, 2000 (21 of 2000).]

Section 2, BSA — extracts:

(d) "document" means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.

(vi) An electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents;

(e) "evidence" means and includes—(i) all statements including statements given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence; (ii) all documents including electronic or digital records produced for the inspection of the Court …

(2) Words and expressions used herein and not defined but defined in the Information Technology Act, 2000, the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Bharatiya Nyaya Sanhita, 2023 shall have the same meanings as assigned to them in the said Act and Sanhitas.

How it works — the definitions in use

A. The proof ladder. Every finding of fact lands on one of three rungs. A fact is proved when the Court believes it exists, or thinks its existence so probable "that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists" (s.2(1)(j)). It is disproved on the mirror-image test (s.2(1)(c)). It is not proved when it is neither (s.2(1)(i)).

B. The presumption scale. The BSA's own sections show each term at work:

1. May presume (s.2(1)(h)) — discretionary. Under s.117, where a married woman commits suicide within seven years of marriage and her husband or his relative had subjected her to cruelty, the Court "may presume" abetment. The Court may treat the fact as proved unless disproved, or may call for proof.
2. Shall presume (s.2(1)(l)) — compulsory but rebuttable. Under s.118, where a woman was subjected to cruelty or harassment for dowry soon before her death, the Court "shall presume" that the person who did so caused the dowry death. The fact stands as proved "unless and until it is disproved".
3. Conclusive proof (s.2(1)(b)) — no rebuttal. Under s.116, birth during a valid marriage, or within 280 days after its dissolution with the mother remaining unmarried, "shall be conclusive proof" of legitimacy, unless non-access is shown. The Court "shall not allow evidence to be given for the purpose of disproving it".

C. What can be evidence. Oral evidence is what witnesses state before the Court, now "including statements given electronically". Documentary evidence is documents produced for inspection, "including electronic or digital records". Under s.2(1)(d), a writing, printed words, a map, an inscription and a caricature are documents (Illustrations (i)-(v)). So is an electronic record on emails, server logs, computers, laptops or smartphones, messages, websites, locational evidence and voice mail (Illustration (vi)).

D. Facts, facts in issue and relevance. "That a person said certain words, is a fact" (s.2(1)(f), Illustration (iii)). In a murder trial the facts in issue may include that A caused B's death, intended it, was provoked, or was of unsound mind (s.2(1)(g), Illustrations (i)-(iv)). A fact is "relevant" only if connected in one of the ways the Act's relevancy provisions describe. Under s.3, evidence may be given of facts in issue and relevant facts "and of no others".

E. Borrowed meanings (s.2(2)). A word the BSA uses but does not define takes its IT Act, BNSS or BNS meaning. "Electronic record" is used throughout the BSA but not defined in it; the IT Act, s.2(1)(t), defines it as "data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche". On a reading of s.2(2), a word the BSA does define keeps the BSA meaning. For example, BNS s.2(8) defines "document" differently, as matter intended to be used "as evidence of that matter"; it does not displace BSA s.2(1)(d).

What this means in practice

• For the advocate: Cite the lettered clause, such as "s.2(1)(j) BSA" for "proved", in proceedings governed by the BSA. Where a provision says "shall presume", the Court has no discretion once the foundational facts are shown, but the accused may still rebut. Hiten P. Dalal holds that rebuttal is measured on the prudent-man standard in the definition of "proved", not by conclusive proof. Where the BSA says "may presume", the Court may instead call for proof.
• For a party relying on digital material: Emails, messages and phone data are "documents" under s.2(1)(d). Admissibility is governed separately. Section 61 says nothing in the Act denies admissibility of an electronic or digital record on the ground that it is one, and that such a record, "subject to section 63", has the same legal effect as other documents. Where a statement in an electronic record is given in evidence under s.63, s.63(4) requires a certificate "at each instance where it is being submitted for admission". See the electronic evidence page.
• For a witness far from court: Oral evidence now expressly includes "statements given electronically" (s.2(1)(e)(i)). On the procedure side, BNSS s.2(1)(a) defines "audio-video electronic means" to include use of any communication device for video conferencing. See the video-conferencing page.
• For anyone reading the definitions: Each applies "unless the context otherwise requires". A definition gives way where a particular section's context points elsewhere.

Judgments that still matter

Apart from the changes above, the BSA definitions of "proved", "may presume", "shall presume" and "evidence" repeat the IEA words, or widen them. On a reading of the text, judgments construing those words remain relevant. None of the judgments below construes the BSA.

State of Maharashtra v. Dr. Praful B. Desai, [2003] 3 S.C.R. 244. S.N. Variava J. delivered the judgment of a bench with B.N. Agrawal J. The question was whether evidence in a criminal trial could be recorded by video-conferencing. Relying on the IEA definition of "evidence", the Court said that "evidence, even in criminal matters, can also be by way of electronic records. This would include video-conferencing" (para 12). It treated the Criminal Procedure Code as an "ongoing statute", construed to allow for relevant changes since its passing, including in technology (para 14). It set aside the High Court's judgment and directed that the witness's evidence be recorded by video-conferencing (para 25). Why it matters now: s.2(1)(e)(i) BSA now puts "statements given electronically" into the definition itself.

M. Narsinga Rao v. State of Andhra Pradesh, [2000] Supp. 5 S.C.R. 584 (2000 INSC 585), 12 December 2000. K.T. Thomas J. delivered the judgment of a three-judge bench. Presumptions under "may presume" are "factual presumptions" or "discretionary presumptions", and those under "shall presume" are "legal presumptions" or "compulsory presumptions" (report p. 591). The Court held that "proof" should be understood as the IEA defines "proved". The acceptance of gratification that triggers the legal presumption under s.20 of the Prevention of Corruption Act need not be proved by direct evidence; it may be inferred from proved facts. The appeal was dismissed. Why it matters now: the BSA repeats the "may presume", "shall presume" and "proved" definitions in s.2(1)(h), (l) and (j).

Hiten P. Dalal v. Bratindranath Banerjee, [2001] 3 S.C.R. 900 (2001 INSC 288), 11 July 2001. Ruma Pal J. delivered the judgment of a three-judge bench. Where a statute says the Court "shall presume", the presumption is one of law, and it is "obligatory on the Court to raise this presumption" once its factual basis is established (report p. 909). The person against whom it is drawn may still rebut it. Applying the definition of "proved", the Court held that "the rebuttal does not have to be conclusively established". The standard of reasonability is that of the "prudent man". The appellant had not discharged that burden, and his conviction under s.138 of the Negotiable Instruments Act stood. Why it matters now: s.2(1)(l) and s.2(1)(j) BSA repeat the two definitions the Court combined.

Which law applies to your case

Section 170(2) BSA provides that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force "shall be dealt with under the provisions of the Indian Evidence Act, 1872 … as if this Adhiniyam had not come into force". On a reading of that clause, IEA ss.3 and 4 supply the definitions in such a case. BSA s.2 governs proceedings begun on or after 1 July 2024. See which law applies to an offence before 1 July 2024.

Frequently asked questions

Does the BSA change what "proved" means? No. The definition of "proved" in Section 2(1)(j) BSA uses the same words as Section 3 of the Evidence Act: the Court either believes a fact to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. "Disproved" (s.2(1)(c)) and "not proved" (s.2(1)(i)) are redrafted but apply the same test.

Are emails and phone messages now "documents" under the BSA? Section 2(1)(d) BSA says a document "includes electronic and digital records", and Illustration (vi) lists an electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices. Section 3 of the Evidence Act had no such words in its definition of document. How such a record is proved is governed by BSA ss.61 to 63.

Can a witness give evidence by video conference under the BSA? Section 2(1)(e)(i) BSA defines oral evidence as all statements "including statements given electronically" which the Court permits or requires witnesses to make before it. Section 3 of the Evidence Act had no such words. Under the old definition, the Supreme Court in State of Maharashtra v. Dr. Praful B. Desai ([2003] 3 S.C.R. 244) had already held that evidence in a criminal trial could be recorded by video-conferencing.

What is the difference between "may presume", "shall presume" and "conclusive proof"? Under Section 2(1)(h) BSA, where the Court may presume a fact it may regard the fact as proved unless disproved, or call for proof. Under s.2(1)(l), where it shall presume, it must regard the fact as proved unless and until disproved. Under s.2(1)(b), conclusive proof means the Court regards the other fact as proved and shall not allow evidence to disprove it. BSA ss.117, 118 and 116 use each term in turn.

What does Section 2(2) BSA do? It says words and expressions used in the BSA and not defined in it, but defined in the Information Technology Act, 2000, the BNSS, 2023 or the BNS, 2023, have the meanings given there. The old Section 3 did this only for nine listed IT Act expressions such as "electronic records" and "subscriber". For example, "electronic record" is used in the BSA but not defined there; the IT Act, s.2(1)(t), defines it.

Does the BSA define "India"? No. Section 3 of the Evidence Act defined "India", in the text as printed, as the territory of India excluding the State of Jammu and Kashmir. Section 2 BSA has no definition of "India". The BSA does not state why the definition was dropped.

Which definitions apply to a trial pending on 1 July 2024? Section 170(2) BSA says any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force is dealt with under the Indian Evidence Act, 1872 as if the BSA had not come into force. On a reading of that clause, the Section 3 and 4 definitions govern such a case, and Section 2 BSA governs proceedings begun later.

Related

• Sections 62-65B Evidence Act vs Sections 57-63 BSA: electronic evidence
• Sections 65A-65B Evidence Act vs Sections 62-63 BSA: electronic records
• Section 114 Evidence Act vs Section 119 BSA: court presumptions
• Sections 113A-113B Evidence Act vs Sections 117-118 BSA: abetment of suicide and dowry death presumptions
• Witness and accused by video conferencing: BNSS vs CrPC
• Evidence Act to BSA: complete section mapping
• Sections 56 and 57 Evidence Act vs Sections 51 and 52 BSA — Judicial Notice

Sources

• Acts and sections read: BSA 2023 ss.2, 3, 61-63, 116-118, 170 (Gazette CG-DL-E-25122023-250882); BNSS 2023 s.2(1)(a), (i) (Gazette CG-DL-E-25122023-250884); BNS 2023 s.2(8) (Gazette CG-DL-E-25122023-250883); Indian Evidence Act, 1872 ss.3-4 with footnotes (original India Code text); Information Technology Act, 2000 s.2(1)(t).
• Judgments read (Veritect judgment corpus, full text): State of Maharashtra v. Dr. Praful B. Desai (2003_3_244_265_EN.md); M. Narsinga Rao v. State of Andhra Pradesh (S_2000_5_584_595_EN.md); Hiten P. Dalal v. Bratindranath Banerjee (2001_3_900_915_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.