Nature and Meaning of Evidence under the Bharatiya Sakshya Adhiniyam, 2023: Definition, Kinds, Classification and Appreciation of Evidence

Evidence is the material on which a court acts in reaching its conclusions of fact. It is neither the fact itself nor the conclusion drawn from it, but the medium through which the one is made to yield the other. The Bharatiya Sakshya Adhiniyam defines evidence in Section 2(1)(e), classifies it into oral and documentary, and then devotes the remainder of its provisions to determining which evidence may be received and what effect it is to be given.

1. Meaning and Derivation

The English word 'evidence' derives from the Latin evidens or evidere, meaning to show clearly, to make plain, or to discover clearly. The Sanskrit-derived 'Sakshya', used in the title of the Adhiniyam, carries a corresponding sense: that which the sakshi, or witness, brings before the court. Both expressions treat evidence as something that renders a fact visible to the tribunal, rather than as the fact itself.

Ancient Indian jurisprudence recognised three modes of proof — lekhya (document), sakshi (witness) and bhukti (possession). The first two survive as the two statutory categories of the Adhiniyam, and the third continues to operate through the provisions on presumptions and burden of proof.

1.1 Definitions by jurists

Jurist	Definition
Jeremy Bentham	Any matter of fact the effect, tendency or design of which is to produce in the mind a persuasion concerning the existence of some other matter of fact, whether affirmative or disaffirmative
Sir James Fitzjames Stephen	The words uttered and things exhibited before a court, and the facts proved to exist by those words and things, from which inferences are to be drawn
Taylor	All legal rules regulating the means by which any fact may be proved in a court of law, whether in a civil or a criminal proceeding
Phipson	The testimony, whether oral, documentary or real, which may legally be received in order to prove or disprove some fact in dispute
Best	That which tends to render evident or to generate proof; the medium of proof
Wigmore	Any knowable fact or group of facts, considered with a view to its being offered before a tribunal for the purpose of producing a persuasion as to the truth of a proposition
Salmond	Any fact which possesses probative force, that is, which tends to persuade the court of the existence or non-existence of some other fact

2. The Statutory Definition

Section 2(1)(e), BSA — 'Evidence'

'Evidence' means and includes —

(i) all statements including any statement 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, and such documents are called documentary evidence.

2.1 Analysis of the definition

'Means and includes'. The formula is both exhaustive and expansive. It confines evidence to the two categories named, while leaving the content of each category open.
'Statements which the Court permits or requires'. A statement is evidence only if made before the court under its permission or requirement. A statement made out of court, however probative, is not evidence unless a specific provision, such as Section 26 on dying declarations, brings it in.
'Including any statement given electronically'. New to the Adhiniyam. This supplies the statutory foundation for depositions taken by video conference and for the remote examination of witnesses and experts.
'In relation to matters of fact under inquiry'. Evidence must relate to a matter of fact in issue or a relevant fact. Testimony on a question of law, or on a fact wholly outside the enquiry, is not evidence.
'All documents including electronic or digital records produced for the inspection of the Court'. New to the Adhiniyam. Under the Indian Evidence Act the same result was reached indirectly, through the definition of 'document' read with Section 65B and the provisions inserted by the Information Technology Act, 2000.

2.2 What the definition leaves out

The statutory definition names only two categories, but courts act on material that falls within neither in the strict sense.

Material or real evidence. Weapons, stains, injuries, and the physical condition of persons and places. These are brought within the scheme by the second proviso to Section 55, under which if oral evidence refers to the existence or condition of any material thing other than a document, the court may require its production for inspection.
The demeanour of a witness. Not evidence in the statutory sense, but a matter the trial court is entitled and expected to observe and to record.
Facts of which judicial notice is taken, and facts admitted. These need not be proved at all, under Sections 51 to 53.
Presumptions. A presumption is not evidence; it is a rule about the effect of evidence, or about the consequence of the absence of evidence.
Local inspection. An inspection conducted by the court is not evidence, but is a means of appreciating the evidence on record.

3. Evidence, Proof, Relevancy and Admissibility

Four concepts are distinct and are used precisely in the Adhiniyam. Confusing them is the commonest source of error in reasoning about the law of evidence.

Concept	Meaning	Provision
Evidence	The material placed before the court as the instrument of proof	Section 2(1)(e)
Relevancy	The logical and probative connection between a fact and a fact in issue, as recognised by the statute	Section 2(1)(k); Sections 3 to 50
Admissibility	The permission of the law to receive relevant material, and the mode in which it must be received	Sections 51 to 103
Proof	The effect produced in the mind of the court by the evidence received	Section 2(1)(j) ('proved'), 2(1)(c) ('disproved'), 2(1)(i) ('not proved')

Sections 2(1)(j), (c) and (i), BSA — proved, disproved and not proved

A fact is said to be 'proved' when, after considering the matters before it, the Court either believes it 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.

A fact is said to be 'disproved' when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

A fact is said 'not proved' when it is neither proved nor disproved.

Three consequences follow from the definition of 'proved'. Proof is a matter of the satisfaction of the court, not of mathematical demonstration. The standard is that of the prudent man, an objective standard rather than the private conviction of the particular judge. And the standard is expressly relative to 'the circumstances of the particular case', which is what permits a higher degree of assurance to be required in a criminal trial than in a civil suit.

3.1 Relevancy and admissibility

	Relevancy	Admissibility
Basis	Logic and probative connection, as filtered by the statute	Law and policy — whether the statute permits reception
Located in	Part II (Sections 3 to 50)	Parts III and IV (Sections 51 onwards)
Question asked	Does this fact make a fact in issue more or less probable, in a manner the Adhiniyam recognises?	Even if relevant, does any rule exclude it, and has the prescribed mode of proof been followed?
Discretion	The heads of relevancy are exhaustive; a fact outside Sections 4 to 50 is not relevant however probative	Rule-bound; there is no general discretion to admit relevant but inadmissible material
Relationship	All admissible evidence is relevant	Not all relevant evidence is admissible

A confession made to a police officer illustrates the distinction. It is plainly relevant to the question of guilt, yet Section 23(1) renders it inadmissible. The exclusion rests on policy concerning the risk of custodial coercion, not on any deficiency of probative value.

📖 Kalyan Kumar Gogoi v. Ashutosh Agnihotri, (2011) 2 SCC 532

Facts: An election petition turned on whether certain material could be treated as evidence for the purpose of proving a corrupt practice.

Held: The word 'evidence' is used in common parlance in three senses — as equivalent to relevant, as equivalent to proof, and as equivalent to the material on which the court acts in reaching its conclusion. The statutory definition adopts the third.

Ratio: Evidence is the instrument of proof and not proof itself. A fact may be in evidence and yet remain unproved.

4. Fact, Fact in Issue and Relevant Fact

Sections 2(1)(f), (g) and (k), BSA

'Fact' means and includes — (i) any thing, state of things, or relation of things, capable of being perceived by the senses; (ii) any mental condition of which any person is conscious.

'Facts in issue' means and includes any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows.

One fact is said to be 'relevant' to another when the one is connected with the other in any of the ways referred to in the provisions of this Adhiniyam relating to the relevancy of facts.

Term	Character	Illustration
Physical fact	A thing, state of things or relation of things perceptible by the senses	That a man heard or saw something; that a document is in a particular condition
Psychological fact	A mental condition of which a person is conscious	That a man holds a certain opinion, intends a certain thing, acts in good faith or fraudulently, or uses a particular word in a particular sense
Fact in issue	A fact which the plaintiff or the prosecution must establish and the defence denies; determined by the pleadings in a civil case and by the charge in a criminal case	In a prosecution for homicide: that the accused caused the death; that he intended to cause death; that he was of sound mind
Relevant fact	A fact connected with a fact in issue in one of the ways the Adhiniyam recognises	Motive, preparation, previous or subsequent conduct, occasion, cause and effect, common intention

The distinction matters because relevancy under the Adhiniyam is not a matter of general logic. A fact is relevant only if it falls within one of the heads set out in Sections 4 to 50. A fact that seems probative but does not fall within any head is not relevant, and evidence of it cannot be received.

5. Kinds of Evidence

The Adhiniyam recognises only two statutory categories, oral and documentary. The other classifications below are analytical, drawn from the structure of the statute and from judicial usage, and they overlap: a single piece of material may be documentary, secondary, circumstantial and corroborative at the same time.

5.1 Oral and documentary

	Oral evidence	Documentary evidence
Definition	All statements, including statements given electronically, which the court permits or requires to be made before it by witnesses	All documents, including electronic or digital records, produced for the inspection of the court
Governing provisions	Sections 54 and 55	Sections 56 to 93
Central rule	Oral evidence must in all cases be direct — the witness must depose to what he himself saw, heard or perceived, or to the ground on which he holds an opinion	The contents of a document must be proved by primary evidence, secondary evidence being admissible only in the cases specified
Exceptions	Opinion of an expert expressed in a treatise, where the author is dead, not to be found, incapable of giving evidence or not procurable without unreasonable delay or expense	Sections 58 and 60, and the presumptions in Sections 78 to 93

5.2 Primary and secondary

	Primary evidence	Secondary evidence
Provision	Section 57	Section 58
Meaning	The document itself produced for the inspection of the court	Evidence of the contents of a document otherwise than by production of the document itself
Instances	The original; each part of a document executed in several parts; each counterpart as against the party who signed it; each of a number of documents made by one uniform process, such as printing or photography, as against the others	Certified copies; copies made from the original by a mechanical process ensuring accuracy; copies made from or compared with the original; counterparts as against parties who did not execute them; oral accounts of the contents given by a person who has himself seen the document; oral admissions; written admissions; the evidence of a person skilled in the examination of documents who has examined a document consisting of numerous accounts
Electronic records	The Explanations to Section 57 deem specified electronic outputs to be primary evidence: multiple simultaneous files, copies made from a stored record, and records produced from proper custody	Governed by Section 63 and the Schedule where the record is not primary

The last three entries in the list of secondary evidence — oral admissions, written admissions, and the evidence of a person skilled in the examination of documents consisting of numerous accounts — are an expansion introduced by the Adhiniyam. Under the Indian Evidence Act those routes existed but had to be assembled from Section 63 read with Section 65 and the provisions on admissions.

5.3 Direct and circumstantial

	Direct evidence	Circumstantial evidence
Meaning	Evidence of the fact in issue itself, deposed to by a person who perceived it	Evidence of other facts from which the fact in issue may be inferred
Example	An eyewitness who saw the accused inflict the fatal blow	Motive, last-seen-together, recovery of the weapon, medical evidence, conduct after the incident, absence of explanation
Statutory basis	Section 55 — oral evidence must be direct	The relevancy provisions in Sections 4 to 14, which make the surrounding facts relevant
Judicial approach	Requires assessment of the credibility of the witness	Requires that the circumstances be fully established and that they form a complete chain excluding every reasonable hypothesis of innocence

⚠ A note on terminology

The expression 'direct evidence' is used in two different senses, and the difference should be kept in view. In Section 55 it means evidence given by a witness of what he himself perceived, as opposed to hearsay. In the classification above it means evidence of the fact in issue itself, as opposed to circumstantial evidence. Testimony may be direct in the first sense and circumstantial in the second, as where a witness deposes that he personally saw the accused purchase poison.

5.4 Other classifications

Classification	Meaning
Real or material evidence	Physical objects produced for the inspection of the court — a weapon, a stained garment, an injury. Brought within the scheme by the second proviso to Section 55
Hearsay or derivative evidence	A statement made out of court, tendered to prove the truth of its contents. Excluded as a general rule by Section 55, subject to the statutory exceptions
Judicial and extra-judicial	Judicial evidence is received by the court in the course of the proceeding; extra-judicial evidence is made outside the court, and becomes receivable only where a provision such as Section 26 permits
Substantive and corroborative	Substantive evidence may by itself sustain a finding; corroborative evidence lends support to substantive evidence but cannot found a finding on its own. A former statement used under Section 160 to corroborate is not substantive evidence
Original and unoriginal	Original evidence is that which a witness gives of his own perception; unoriginal evidence is derived from another source
Expert or scientific evidence	Opinion on a point of science, art, foreign law, handwriting, finger impressions or any other field, admissible under Section 39. Ordinarily corroborative rather than substantive
Electronic and digital evidence	Records within Section 2(1)(d) and Section 2(1)(e), governed by Sections 57, 61 and 63 and the Schedule

6. Circumstantial Evidence

Where there is no direct evidence of the fact in issue, a conviction may rest on circumstantial evidence, but the standard applied to such evidence is exacting. Two decisions govern the field.

📖 Hanumant v. State of Madhya Pradesh, AIR 1952 SC 343

Held: In cases depending on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn should be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and tendency, and should exclude every hypothesis but the one proposed to be proved. There must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.

Ratio: The foundational statement of the standard applicable to circumstantial evidence in Indian law.

📖 Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116

Held: The Court restated the requirements of a case resting on circumstantial evidence in five conditions, described in the judgment as the panchsheel of proof in such cases:

(i) the circumstances from which the conclusion of guilt is drawn should be fully established, and the facts must be established and not merely 'may be' established;

(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused;

(iii) the circumstances should be of a conclusive nature and tendency;

(iv) they should exclude every possible hypothesis except the one to be proved; and

(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused, and must show that in all human probability the act must have been done by the accused.

Ratio: The governing authority on circumstantial evidence, and the case in which the distinction between 'may be proved' and 'must be or should be proved' was emphasised.

📖 Bodh Raj v. State of Jammu and Kashmir, (2002) 8 SCC 45

Held: The last-seen-together circumstance comes into play where the time gap between the point when the accused and the deceased were last seen alive and the point when the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. The circumstance is a link in the chain and is not by itself conclusive.

Ratio: A single circumstance, however suggestive, does not discharge the burden; it must form part of a complete chain.

7. The Rule Against Hearsay

Hearsay is a statement made otherwise than by a witness deposing before the court, tendered to prove the truth of what it asserts. The general rule excluding it is given effect by Section 55, which requires oral evidence to be direct in all cases.

7.1 Reasons for the exclusion

The maker of the statement was not on oath.
The maker was not subject to cross-examination.
The court cannot observe the demeanour of the maker.
Repetition weakens the reliability of the account, and the truth may be diluted at each remove.
Responsibility is diminished, since the person repeating the statement does not vouch for its truth.

📖 Subramaniam v. Public Prosecutor, (1956) 1 WLR 965 (PC)

Held: Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that it was made.

Ratio: The classic formulation of the boundary of the hearsay rule, applied consistently by Indian courts.

7.2 Statutory exceptions

Exception	Provision
Res gestae — facts forming part of the same transaction	Section 4
Admissions and confessions	Sections 15 to 25
Statements by persons who cannot be called as witnesses, including dying declarations	Sections 26 and 27
Entries in books of account, public records, maps, charts and plans	Sections 28 to 32
Evidence given in a former proceeding	Section 27
Opinion of experts and of persons having special means of knowledge	Sections 39 to 45
Statements in published maps and charts, and in Acts and notifications	Sections 30 and 31

8. Standard of Proof

The definition of 'proved' in Section 2(1)(j) is common to civil and criminal proceedings, but the words 'under the circumstances of the particular case' allow the degree of assurance required to vary with the nature of the proceeding.

	Criminal proceeding	Civil proceeding
Standard	Proof beyond reasonable doubt	Preponderance of probabilities
Who bears the burden	The prosecution throughout, subject to statutory presumptions	The party who asserts, under Sections 104 and 105
Effect of doubt	The benefit of a reasonable doubt goes to the accused	The party bearing the burden fails if the balance is even
Presumption	The accused is presumed innocent until the contrary is proved	No general presumption in favour of either party

📖 Woolmington v. Director of Public Prosecutions, [1935] AC 462 (HL)

Held: Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt, subject to the defence of insanity and to any statutory exception. If at the end of and on the whole of the case there is a reasonable doubt, the prosecution has not made out the case and the prisoner is entitled to an acquittal.

Ratio: The foundational statement on the burden and standard of proof in criminal cases, consistently applied in India.

📖 State of U.P. v. Krishna Gopal, (1988) 4 SCC 302

Held: Doubts would be called reasonable if they are free from a zest for abstract speculation. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense arising out of the evidence in the case. The standard is that of a reasonable and prudent man, not of a person of vacillating mind.

Ratio: Reasonable doubt is a standard grounded in reason, and is not satisfied by fanciful or speculative doubt.

9. Appreciation of Evidence

Admissibility is a question of law for the court; the weight to be attached to admitted evidence is a question of fact. The Adhiniyam contains few rules on weight, leaving it to judicial assessment, but two principles are statutory.

Section 139, BSA — Number of witnesses

No particular number of witnesses shall in any case be required for the proof of any fact.

The provision reproduces Section 134 of the Indian Evidence Act, and gives statutory effect to the principle that evidence is to be weighed and not counted.

📖 Vadivelu Thevar v. State of Madras, AIR 1957 SC 614

Held: Section 134 of the Indian Evidence Act enshrines the well-recognised maxim that evidence has to be weighed and not counted. A conviction may be founded on the testimony of a single witness if that testimony is found to be wholly reliable. Witnesses may be classified as wholly reliable, wholly unreliable, and neither wholly reliable nor wholly unreliable; in the first case the court has no difficulty in convicting, in the second in acquitting, and in the third corroboration is sought.

Ratio: The quality of testimony, and not the number of witnesses, determines whether a fact is proved.

📖 Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517

Held: Rules of procedure and of evidence are handmaids of justice. Where the substance of the matter is clear, a court should not permit an evidentiary irregularity which does not go to the root of the matter and causes no prejudice to defeat the ends of justice.

Ratio: Evidentiary rules are instrumental, and are to be applied in aid of a just determination.

Section 169 of the Adhiniyam reinforces the same approach at the appellate stage. The improper admission or rejection of evidence is not of itself a ground for a new trial or for reversal of a decision, if it appears to the court that there was sufficient other evidence to justify the decision, or that the rejected evidence would not have varied it.

10. Nature of the Law of Evidence

It is adjectival law. The law of evidence supplies the machinery for enforcing rights rather than creating them. It is nevertheless frequently decisive in substance, since a right that cannot be proved fails.
It is lex fori. An Indian court applies Indian rules of evidence even to a transaction governed by foreign substantive law. The law of evidence is the law of the forum: competence of witnesses, mode of proof and incidence of burden are determined by the law of the place of trial.
It is exhaustive on relevancy. A fact not falling within Sections 4 to 50 is not relevant, however probative it may appear.
It applies to courts, not to every fact-finding body. Section 1(2) confines the Adhiniyam to judicial proceedings and excludes affidavits and arbitration. Tribunals and domestic bodies remain subject to the principles of natural justice and to the rule that a finding cannot rest on no evidence.
It is procedural in operation. No litigant has a vested right in a mode of procedure, and the applicable law of evidence is ordinarily that in force when the evidence is tendered and recorded.

11. Related Topics and Provisions

Topic or provision	Connection
Introduction to the BSA, 2023	The salient features of the Adhiniyam and its relationship with the BNS and the BNSS
Application of the BSA — Section 1	The forums in which the definitions considered here operate
Sections 3 to 50, BSA	Relevancy of facts, the heads within which a fact must fall to be relevant
Sections 54 and 55, BSA	Oral evidence and the requirement that it be direct
Sections 56 to 93, BSA	Documentary evidence, primary and secondary evidence, and the presumptions as to documents
Sections 57, 61 and 63 and the Schedule, BSA	Electronic and digital records
Sections 104 to 120, BSA	Burden of proof and the statutory presumptions
Section 139, BSA	Number of witnesses; evidence to be weighed and not counted
Section 169, BSA	Effect of the improper admission or rejection of evidence