​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Presumption as to Dowry Death
[Section 118]

1. Introduction
Dowry death refers to the death of a married woman who is killed or driven to commit suicide due to cruelty or harassment in connection with dowry demands. Such deaths are a serious social evil and are prevalent in countries like India, Pakistan, Bangladesh, and Iran.
To combat this menace, the law incorporates a statutory presumption against the husband or his relatives in appropriate cases. Section 118 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) provides for presumption as to dowry death.

2. Statutory Provision: Section 118
Section 118 states that:
When the question is whether a person has committed the dowry death of a woman, and it is shown that:

• soon before her death,
• such woman was subjected by such person to cruelty or harassment,
• for or in connection with any demand for dowry,

👉 the Court shall presume that such person had caused the dowry death.
Explanation:
The expression “dowry death” shall have the same meaning as assigned to it under Section 80 of the Bharatiya Nyaya Sanhita, 2023.

3. Meaning of Dowry Death (Section 80, BNS, 2023)
A death is termed as dowry death when:

• The death of a woman is caused by burns, bodily injury, or occurs otherwise than under normal circumstances;
• Such death occurs within seven years of her marriage;
• It is shown that soon before her death, she was subjected to cruelty or harassment;
• Such cruelty or harassment was by her husband or his relatives;
• The cruelty or harassment was for or in connection with any demand for dowry.

📌 Dowry has the same meaning as under Section 2 of the Dowry Prohibition Act, 1961.
Punishment (Section 80(2), BNS):
Imprisonment for not less than seven years, which may extend to imprisonment for life.

4. Essentials to Raise Presumption under Section 118
The prosecution must establish the following ingredients:

1. Death of a woman caused by burns, bodily injury, or otherwise than under normal circumstances;
2. Death occurred within seven years of marriage;
3. The woman was subjected to cruelty or harassment;
4. Such cruelty or harassment was by the husband or his relatives;
5. The cruelty or harassment was for or in connection with demand for dowry;
6. The cruelty or harassment occurred soon before her death.

✔️ Once these conditions are satisfied, the presumption of dowry death must be drawn.

5. Nature of Presumption – Mandatory but Rebuttable

• Section 118 uses the expression “shall presume”, making the presumption mandatory.
• Once the foundational facts are proved, the Court has no discretion and must presume that the accused caused the dowry death.
• However, the presumption is rebuttable.
• The accused can disprove it by leading cogent and credible evidence.
• This provision places a reverse burden of proof on the accused.

📌 Section 118 BSA corresponds to Section 113B of the Indian Evidence Act, read with Section 304B IPC.

6. “Soon Before Her Death” – Proximity Test
The phrase “soon before her death” does not mean immediately before.
In Maya Devi v. State of Haryana, the Supreme Court held:

• The expression implies a proximity test.
• There must be a live and proximate link between the cruelty or harassment related to dowry demand and the death.
• If the cruelty is remote in time and has become stale, the presumption will not arise.

👉 The interval between cruelty and death should not be so wide that the connection becomes insignificant.

7. No Fixed Time Period for Proximity Test
The law does not prescribe any specific time limit for “soon before her death”.
In Parvati Devi v. State of Bihar (now Jharkhand); Ram Sahay Mahato v. State of Bihar, the Supreme Court held:

• The proximity test must be applied case by case.
• Where dowry demands were made shortly after marriage and the woman went missing or died under abnormal circumstances, presumption under Section 118 would arise.
• Even circumstantial evidence can be sufficient to raise the presumption.

📌 In this case:

• Conviction of the husband was upheld.
• Mother-in-law was acquitted due to absence of specific allegations and evidence against her.

8. Key Legal Principles (Note Form)

• Dowry death presumption is a presumption of law, not of fact.
• The burden initially lies on the prosecution to prove foundational facts.
• Once proved, the burden shifts to the accused.
• “Soon before her death” requires a proximate and live link, not a rigid timeframe.
• Presumption applies individually, not automatically to all relatives.
• Each accused’s role must be specifically established.

9. Conclusion
Section 118 of the Bharatiya Sakshya Adhiniyam, 2023 plays a crucial role in addressing dowry-related deaths by strengthening the evidentiary framework. By introducing a mandatory presumption with a reverse burden of proof, the law seeks to ensure accountability while still preserving the accused’s right to rebut the presumption. The judicial interpretation of expressions like “soon before her death” ensures flexibility and fairness through case-specific analysis.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Presumption as to Abetment of Suicide by a Married Woman [Section 117]

1. IntroductionSuicide by a married woman, particularly within a few years of marriage, often raises serious concerns about domestic cruelty and harassment. Recognising this social reality, the law provides a special evidentiary presumption in appropriate cases.

Section 117 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the presumption as to abetment of suicide by a married woman.
This provision empowers the Court to presume that the suicide was abetted by the husband or his relatives, subject to fulfilment of specific conditions and an overall assessment of the facts of the case.

2. Statutory Provision: Section 117
Section 117 provides that:
When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband, and:

1. it is shown that she committed suicide within seven years from the date of her marriage, and
2. her husband or such relative of her husband had subjected her to cruelty,

👉 then the Court may presume, having regard to all other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

3. Meaning of “Cruelty”
The term “cruelty” has the same meaning as assigned under the Explanation to Section 86 of the Bharatiya Nyaya Sanhita, 2023, which includes:

• Any wilful conduct of such a nature as is likely to:
  • drive the woman to commit suicide, or
  • cause grave injury or danger to her life, limb, or health (whether mental or physical).

Cruelty may thus be physical or mental and must be serious enough to have a direct bearing on the woman’s decision to end her life.

4. Essential Conditions for Applicability
To attract Section 117, the following three essentials must be proved by the prosecution:

1. Commission of suicide by the woman;
2. Such suicide was committed within seven years of her marriage;
3. The woman was subjected to cruelty by her husband or his relatives.

Only when all three conditions are fulfilled does the question of presumption arise.

5. Nature of Presumption – Discretionary

• The presumption under Section 117 is discretionary, not mandatory.
• The expression “may presume” clearly indicates that the Court is not bound to raise the presumption merely because the basic conditions are satisfied.
• The Court must also consider “all other circumstances of the case”, including:
  • the nature and gravity of cruelty,
  • the proximity between cruelty and suicide,
  • the conduct of the accused,
  • the mental state of the deceased.

Thus, the presumption cannot be applied mechanically.

6. Requirement of Causal Link
A cause-and-effect relationship between cruelty and suicide is essential.

• Mere proof of cruelty and suicide within seven years is not sufficient.
• The Court must be satisfied that the cruelty was of such intensity that it could reasonably have driven the woman to commit suicide.

7. Judicial Interpretation
Hans Raj v. State of Haryana
The Supreme Court examined the scope of Section 113A of the Indian Evidence Act (corresponding to Section 117 of BSA) and held:

• Unlike dowry death cases under Section 118, the presumption under Section 117 does not arise automatically.
• Even if suicide within seven years and cruelty are proved, the Court is not bound to presume abetment.
• Absence of evidence showing cruelty within the meaning of law will prevent the application of this Section.

8. Mere Suicide Not Sufficient
In Kashibai & Ors. v. State of Karnataka, the Court held:

• Mere commission of suicide by a married woman does not automatically attract Section 117.
• There must be clinching and cogent evidence showing cruelty and its nexus with suicide.
• In the absence of such evidence, no presumption of abetment can be raised, and conviction under Section 306 BNS (abetment of suicide) cannot be sustained.

9. Key Points (Note Form)

• Section 117 applies only to married women.
• Time limit: within seven years of marriage.
• Presumption is permissive, not compulsory.
• Court must consider all surrounding circumstances.
• Cruelty alone is insufficient unless linked to suicide.
• Presumption is rebuttable by the accused.
• Distinct from dowry death presumption under Section 118, which is mandatory.

10. Conclusion
Section 117 of the Bharatiya Sakshya Adhiniyam, 2023 strikes a careful balance between protecting married women from domestic cruelty and safeguarding the rights of the accused. By making the presumption discretionary, the legislature ensures that courts exercise judicial prudence and do not convict solely on the basis of suicide and marital cruelty without establishing a clear nexus between the two. This provision reinforces the principle that criminal liability must rest on proof of culpable conduct, not on mere suspicion.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Estoppel [Section 121]
Meaning and Concept of EstoppelThe doctrine of estoppel in the law of evidence prevents a person from denying or contradicting a fact which he has earlier represented to be true and upon which another person has acted. Section 121 embodies this principle and gives statutory recognition to the equitable doctrine of estoppel.
Section 121 provides that when one person, by his declaration, act, or omission, intentionally causes or permits another person to believe a thing to be true and to act upon such belief, then neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person (or his representative), to deny the truth of that thing.
Illustration:
If A intentionally induces B to believe that certain land belongs to A and B purchases it relying on that belief, A cannot later deny his title even if he did not have ownership at that time.

Judicial Foundation of EstoppelThe doctrine of estoppel is founded on the classic English decision in Pickard v. Sears, where Lord Denman held that a person who induces another to act upon a belief cannot later contradict that belief to the prejudice of the other.
The doctrine is based on the maxim allegans contraria non est audiendus, meaning a person alleging contradictory facts should not be heard.
The primary object of estoppel is:

• To prevent fraud
• To secure justice between parties
• To promote honesty and good faith

This principle was reaffirmed by the Supreme Court in R.S. Madanappa v. Chandramma, where it was held that estoppel cannot apply where the other party already knew the true facts.

Essential Elements of EstoppelFor estoppel under Section 121 to apply, the following essentials must be satisfied:

1. Representation
   • There must be a representation by words, conduct, or omission.
   • The representation must relate to an existing fact, not a future promise or intention.
   • It must be intended to be relied upon.
2. Belief
   • The other party must have believed the representation to be true.
   • If the party knew the true facts or had means of knowing them, estoppel will not apply.
3. Reliance and Change of Position
   • The representation must have caused the other party to act upon it.
   • Such action must result in an alteration of position or detriment.
4. Causation
   • The representation must be the proximate cause of the action taken.
5. Person Entitled to Plead Estoppel
   • Only the person to whom the representation was made (or his representative) can plead estoppel.

Kinds of EstoppelSir Edward Coke classified estoppel into three broad categories:
1. Estoppel by Record (Judgment)This corresponds to the doctrine of res judicata in Indian law. Once a competent court has finally decided an issue, the same issue cannot be reopened between the same parties. It is codified under Section 11 CPC and Sections 34–37 BSA.
2. Estoppel by Deed (Writing)Where parties have entered into a formal written instrument, they are estopped from denying the facts stated therein. In India, however, deeds do not enjoy the same sanctity as under English law, and this form of estoppel has limited application.
3. Estoppel by Conduct (Estoppel in Pais)This is the most important category and is codified under Sections 121 to 123 BSA. It arises when conduct or representation induces reliance and change of position.

Other Important Forms of Estoppel

1. Estoppel by Election
   Where a person has two inconsistent or alternative rights and chooses one, he cannot later claim the other. It applies under statutes like the Transfer of Property Act and Indian Succession Act.
2. Equitable Estoppel
   Though equitable in origin, it is treated as a rule of law under Section 121 BSA. Courts have applied it to prevent injustice even in administrative matters.
3. Promissory Estoppel
   This doctrine prevents a promisor from going back on a promise when the promisee has relied upon it and altered his position. It can operate even without a formal contract and has been frequently applied against the State, subject to public interest and statutory limitations.
4. Estoppel by Negligence
   Where one party’s negligence leads another to believe in a false state of affairs and act upon it, estoppel may apply provided there was a duty of care.

Estoppel and Res Judicata – Note Form Distinction

• Statutory Basis:
  Estoppel is governed by Sections 121–123 of BSA, whereas res judicata is governed by Section 11 of the CPC.
• Nature:
  Estoppel is a rule of evidence; res judicata is a rule of procedure.
• Operation:
  Estoppel prevents a party from denying a fact previously represented.
  Res judicata prevents courts from reopening issues already decided.
• Origin:
  Estoppel arises from conduct or representation of a party.
  Res judicata arises from a judicial decision.
• Binding Effect:
  Estoppel generally binds one party.
  Res judicata binds both parties.
• Objective:
  Estoppel promotes equity and good conscience.
  Res judicata is based on public policy and finality of litigation.

Estoppel and Waiver – Note Form Distinction

• Intention:
  Estoppel does not require intention to relinquish a right.
  Waiver requires voluntary and intentional abandonment of a right.
• Nature:
  Estoppel is a rule of evidence.
  Waiver is contractual in nature.
• Cause of Action:
  Estoppel does not create a cause of action.
  Waiver may constitute a cause of action.
• Benefit or Loss:
  Estoppel does not necessarily require gain or loss.
  Waiver usually involves loss to one party and benefit to another.
• Judgment:
  Estoppel may arise from court judgments.
  Waiver does not arise from judgments.
• Application:
  Estoppel cannot override statutes or sovereign acts.
  Waiver cannot apply to fundamental rights.

Exceptions to Estoppel

• No estoppel against statutes or sovereign acts
• No estoppel against fundamental rights
• No estoppel on questions of law
• No estoppel in criminal proceedings
• No estoppel against minors
• Estoppel fails where true facts are known to both parties
• Fraud or negligence by the party claiming estoppel negates its application

ConclusionEstoppel under Section 121 of the Bharatiya Sakshya Adhiniyam, 2023 plays a vital role in ensuring fairness and consistency in judicial proceedings. It prevents parties from acting dishonestly by contradicting their earlier representations and safeguards reliance interests. While rooted in equity, estoppel operates as a statutory rule of evidence, subject to important limitations to ensure that justice, public policy, and statutory mandates are not undermined

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –Competency of Husband and Wife as Witnesses in Certain Cases (Section 126)

Introduction
Although a husband and wife are bound by marriage, the law treats them as separate legal entities. An important question under the law of evidence is whether spouses can testify for or against each other in judicial proceedings. Section 126 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) answers this question by expressly declaring the competency of husband and wife as witnesses, subject to certain limitations grounded in public policy and marital privacy.

Statutory Provision Explained
Section 126 is divided into two distinct parts dealing separately with civil and criminal proceedings.
(i) Civil Proceedings – Section 126(1)In all civil proceedings:

• The parties to the suit, and
• The husband or wife of any party,

shall be competent witnesses.
This means that spouses may testify for or against each other in civil cases.

(ii) Criminal Proceedings – Section 126(2)
In criminal proceedings against any person:

• The husband or wife of such person shall be a competent witness.

Thus, even in criminal cases, a spouse is legally capable of giving evidence either in favour of or against the accused spouse.

Scope and Significance of Section 126(a)
Removal of the Old Common Law Bar

• Under early common law, husband and wife were treated as one legal person.
• As a result:
  • One spouse could not testify for or against the other.

Section 126 removes this outdated notion and recognises:

• The independent legal personality of spouses, and
• Their competence as witnesses in judicial proceedings.

(b) Husband and Wife as Competent Witnesses

• Spouses are often the best possible witnesses, as they are:
  • Closely associated with the facts, and
  • Likely to have direct knowledge of events.
• Even though spouses may be interested witnesses, the law prefers:
  • Testing their credibility through cross-examination, and
  • Seeking corroboration where necessary,
    rather than excluding their testimony altogether.

This approach enhances the court’s ability to discover the truth.

Section 126 Read with Section 128 (Spousal Privilege)
Although Section 126 declares spouses to be competent witnesses, this competency is not absolute.

• Section 126 must be read subject to Section 128, which:
  • Prohibits disclosure of communications made during marriage.

Thus:

• A husband or wife may testify as a witness,
• But cannot disclose marital communications, except in the limited circumstances permitted under Section 128.

This ensures a balance between:

• Truth-seeking in courts, and
• Preservation of marital confidence and privacy.

Accused Person as a Competent Witness

• An accused person himself is also a competent witness for the defence.
• This is governed by Section 353 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

Key Points

• The accused may choose to give evidence on his own behalf.
• If he chooses not to testify:
  • No adverse inference can be drawn against him, and
  • No comment may be made on his silence.

This flows from constitutional protections and principles of fair trial.

Concept of Privilege of Witnesses
Meaning of Privilege

• The privilege of a witness refers to the right to:
  • Withhold evidence on certain matters, even though the witness is otherwise competent.
• Privilege is based on:
  • Public policy, and
  • Interest of justice, not personal convenience.

Examples include:

• Judges and Magistrates (Section 127),
• Spouses (Section 128),
• Legal professional communications (Sections 132–134).

Competency vs Compellability
It is important to distinguish between:

• Competency: Legal capacity to testify, and
• Compellability: Legal obligation to testify.

Certain witnesses may be:

• Competent but not compellable, due to privilege (e.g., Judges, spouses regarding marital communications).

Thus, non-compellability arises:

• Not from incompetence,
• But from considerations of public policy and justice.

Object of Section 126The object of Section 126 is to:

• Modernise the law by recognising spouses as independent witnesses;
• Prevent exclusion of valuable evidence merely due to marital status;
• Enable courts to access the best possible evidence;
• Balance this access with safeguards under Section 128.

Critical Analysis
Strengths

• Removes archaic legal fiction of marital unity
• Enhances truth-finding by allowing spousal testimony
• Aligns evidence law with constitutional values
• Maintains privacy through spousal privilege

Limitations

• Risk of biased testimony due to marital interest
• Requires careful judicial evaluation and corroboration

Conclusion
Section 126 of the Bharatiya Sakshya Adhiniyam, 2023 marks a progressive step in evidence law by affirming that husband and wife are competent witnesses in both civil and criminal proceedings. By doing so, it rejects outdated common law restrictions and promotes effective adjudication.
At the same time, by making this competency subject to Section 128, the law preserves the sanctity of marital communications. Section 126 thus achieves a careful balance between truth, fairness, and marital privacy, strengthening the overall framework of witness competency under Indian evidence law.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –Witness Unable to Communicate Verbally (Section 125)

Introduction
For a person to appear as a witness before a court, the essential requirement is not the ability to speak, but the ability to communicate intelligibly. The law recognises that some witnesses may be unable to communicate verbally due to physical disability such as being deaf, dumb, paralysed, or otherwise speech-impaired. Section 125 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) ensures that such persons are not excluded from the justice process merely because they cannot speak.

Statutory Provision Explained
Section 125 – Witness Unable to Communicate Verbally

• A witness who is unable to speak may give evidence:
  • By writing, or
  • By signs, or
  • By any other manner through which the evidence can be made intelligible.
• Conditions imposed by law:
  • The writing must be done, and the signs must be made in open court.
  • Evidence so given shall be deemed to be oral evidence.
• Additional safeguard:
  • Where the witness cannot communicate verbally, the court shall:
    • Take the assistance of an interpreter or a special educator, and
    • Ensure that the statement is video-graphed.

Scope and Purpose of Section 125
(a) Inclusive Nature of Evidence Law

• The provision reflects a rights-based and inclusive approach.
• A person with speech or hearing disability:
  • Is not disqualified from being a witness, and
  • Cannot be presumed to be unreliable merely due to physical limitations.
• Communication through signs or writing, though limited in expression, is still capable of conveying truth when properly recorded and interpreted.

Modes of Communication Recognised
Where a witness is unable to communicate verbally, the following modes are legally recognised:

1. Writing – where the witness can read and write.
2. Signs or gestures – where writing is not possible.
3. Interpretation through an interpreter or special educator – where necessary.

All such methods are treated as valid modes of giving evidence, provided they are intelligible and recorded in accordance with law.

Illustrative Example

• A commits murder of B in the presence of C, who is deaf and dumb.
• During trial:
  • C is shown the weapon (spear).
  • When asked whether the deceased was killed with that spear, C nods affirmatively.
  • When asked who killed B, C points towards A.

These gestures, made in open court, are admissible evidence under Section 125.

Incapability of Verbal Communication: Procedural Safeguards
(b) Role of the Court

• The court must:
  • Carefully record both the signs made by the witness, and
  • The interpretation given by the interpreter or special educator.
• This ensures:
  • Accuracy of the record, and
  • Transparency in the evidentiary process.

Oath and Interpreter

• Under the Oaths Act, both:
  • The witness, and
  • The interpreter (if provided),
    must be administered an oath or affirmation before evidence is recorded.
• The interpreter must:
  • Be neutral and impartial, and
  • Have no interest in the outcome of the case.

Judicial Approach
Courts have consistently held that:

• A deaf and dumb person is a competent witness.
• If the witness can read and write:
  • Questions should preferably be put in writing and answers recorded in writing.
• If the witness cannot read or write:
  • Evidence may be recorded through signs with the assistance of an interpreter.
• Loss of speech due to injury or illness does not affect the admissibility or credibility of evidence, if the prescribed procedure is followed.

Evidentiary Value

• Evidence given under Section 125:
  • Is treated as oral evidence, and
  • Carries the same legal weight as spoken testimony, subject to judicial scrutiny.

Object of Section 125
The object of this provision is to:

• Prevent miscarriage of justice due to physical disability;
• Uphold equality before law;
• Ensure access to justice for persons with disabilities;
• Enable courts to receive relevant evidence in all possible forms.

Conclusion
Section 125 of the Bharatiya Sakshya Adhiniyam, 2023 embodies the modern, inclusive spirit of Indian evidence law. It recognises that speech is not the sole medium of truth and that justice must accommodate human diversity. By permitting evidence through writing, signs, interpreters, and video recording, the law ensures that witnesses who are unable to communicate verbally are heard, respected, and treated on par with other witnesses, without compromising the integrity of judicial proceedings.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –Who May Testify (Section 124)

Introduction
The first and fundamental question in the law of evidence is who is competent to be a witness. The justice delivery system depends on receiving evidence from all persons capable of understanding questions and giving rational answers. Section 124 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) lays down a broad and inclusive rule regarding the competency of witnesses, ensuring that justice is not defeated by rigid technicalities or outdated notions of incapacity.

Statutory Provision Explained
Section 124 provides that:
All persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, due to:

• Tender years,
• Extreme old age,
• Disease (of body or mind), or
• Any other cause of the same kind.

Thus, competency is the rule and incompetency is the exception.

Scope of Section 124
General Rule of Competency

• Every person is presumed to be competent to testify.
• Disqualification arises only when the person:
  1. Is incapable of understanding the questions put to him, or
  2. Is incapable of giving rational answers to those questions.

These are the two statutory tests of competency.

Role of the Court

• Determination of competency is a judicial function.
• The Judge must:
  • Conduct a preliminary examination of the witness, and
  • Satisfy himself about the witness’s ability to understand and respond rationally.

The Judge’s role is especially crucial in cases involving:

• Child witnesses,
• Persons of unsound mind,
• Elderly or infirm persons.

It is advisable for the trial court to record the preliminary questions and answers, so that the appellate court may examine the correctness of the trial court’s opinion.

Child Witness
Competency of a Child Witness

• No statute defines a “child witness” or prescribes a fixed age for competency.
• A child is competent to testify if:
  • He understands the questions, and
  • He can give rational answers.

Credibility and Caution

• A child witness is often:
  • Susceptible to tutoring, suggestion, and influence.
• However:
  • Tutoring by itself is not a ground to reject the testimony.
• The court must:
  • Carefully scrutinize the evidence,
  • Assess whether it has a ring of truth, and
  • Examine the possibility of tutoring.

Corroboration

• Corroboration of a child’s testimony is not a rule of law, but a rule of prudence.
• If the testimony is:
  • Natural, trustworthy, and credible,
  • Conviction may be based even without corroboration.

Judicial ApproachCourts have consistently held that:

• Evidence of a child witness must be evaluated with care and caution.
• Where tutoring or embellishment is apparent, the testimony cannot safely be relied upon.

Oath to a Child Witness

• Under the Oaths Act, 1969:
  • Administering oath is not mandatory for a witness below 12 years of age.
• If the court finds that:
  • The child understands the duty of speaking the truth,
  • An oath may be administered.
• Omission to administer oath:
  • Does not render the evidence inadmissible, if the witness is otherwise competent.

Credibility of Evidence of Child Witness

• Trial courts must:
  • Conduct proper preliminary examination, and
  • Apply judicial wisdom while appreciating such evidence.

Judicial Illustrations

• In State of Assam v. Afizuddin Ahmed, the Supreme Court rejected the testimony of a child witness due to clear tutoring.
• In Digamber Vaishnav v. State of Chhattisgarh, the Court held that child witnesses are easy prey to tutoring and their evidence must ordinarily find corroboration.
• In Pradeep v. State of Haryana, the Supreme Court emphasized that:
  • Judges must ascertain competency through preliminary questions, and
  • Convictions based solely on untrustworthy child testimony are unsafe.

Person of Unsound Mind

• The outdated terms “lunatic” and “lunacy” have been replaced by:
  • Person of unsound mind, and
  • Unsoundness of mind, in line with modern mental health jurisprudence.

Legal Position

• A person of unsound mind is not automatically incompetent.
• Such a person is competent unless:
  • The unsoundness of mind prevents him from understanding questions or giving rational answers.

The only disqualification is intellectual incapacity, not mental illness per se.

Victim of Rape

• In sexual offences:
  • The prosecutrix is a victim, not an accomplice.
• She is a competent witness under Section 124.
• Her testimony is treated akin to that of an injured witness.

Evidentiary Value

• Conviction can be based on the sole testimony of the prosecutrix, because:
  • Such offences are generally committed in secrecy.
• However:
  • If the testimony is wholly unreliable, the court must acquit.

Competency vs Credibility
It is essential to distinguish between:

• Competency – legal capacity to testify, and
• Credibility – trustworthiness of the testimony.

Section 124 deals only with competency.
Credibility is assessed during appreciation of evidence.

Object of Section 124
The object of Section 124 is to:

• Adopt an inclusive approach to evidence,
• Prevent exclusion of witnesses due to physical or mental limitations,
• Ensure access to justice,
• Promote substantive truth over procedural rigidity.

Critical Analysis
Strengths

• Broad and inclusive definition of competency,
• Protects rights of children, disabled persons, and mentally ill persons,
• Emphasizes judicial discretion and caution,
• Aligns with constitutional values of equality and fairness.

Limitations

• Heavy reliance on subjective judicial assessment,
• Risk of error if preliminary examination is not properly conducted,
• Requires high judicial sensitivity and training.

Conclusion
Section 124 of the Bharatiya Sakshya Adhiniyam, 2023 establishes a progressive and humane rule that every person is competent to testify unless proven otherwise. By focusing on the ability to understand questions and give rational answers, the provision ensures that justice is not denied due to age, disability, or mental condition.
Through careful judicial scrutiny—especially in cases involving child witnesses, persons of unsound mind, and victims of sexual offences—Section 124 strengthens the truth-finding mission of courts while safeguarding fairness and reliability in the administration of justice.

Indian Evidence Law - Bharatiya Sakshya Adhiniyam 2023 - Witness- Introduction
​In law, a witness is a person who, either voluntarily or under legal compulsion, gives testimonial evidence, whether oral or written, regarding facts within his knowledge or matters he claims to know. A witness may also be compelled by the court to produce evidence or documents relevant to the proceedings.

Witnesses play a crucial role in judicial proceedings because they assist the court in determining the guilt or innocence of the accused, help reconstruct events by narrating what actually happened, and provide first-hand information that enhances the reliability and credibility of the case. Through their testimony, witnesses lay the foundation for the factual matrix of the case, and their credibility is tested throughout the trial process.
​
Chapter IX (Sections 124–139) of the law of evidence deals comprehensively with witnesses. It covers essential aspects such as who may testify as a witness, the competency and credibility of witnesses, the manner in which testimony is given, and the evidentiary value of such testimony. These provisions collectively ensure that evidence placed before the court is reliable, relevant, and conducive to the fair administration of justice.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023 – Estoppel of Acceptor of a Bill of Exchange, Bailee or Licensee [Section 123]

Section 123 incorporates the doctrine of estoppel in respect of three specific categories of persons, namely:

1. the acceptor of a bill of exchange,
2. the bailee, and
3. the licensee.

The essence of this provision is that a person who has accepted the authority of another at the commencement of a legal or contractual relationship cannot subsequently deny that authority in order to escape liability.

1. Estoppel against the Acceptor of a Bill of Exchange
When a person accepts a bill of exchange, he acknowledges the authority of the drawer to draw or endorse the bill. Consequently, the acceptor is estopped from later denying the drawer’s authority to draw or endorse it.

However, Explanation 1 provides a qualification to this rule. The acceptor is permitted to deny that the bill was actually drawn by the person by whom it purports to have been drawn. Thus, while denial of authority is barred, a plea of forgery remains open.

2. Estoppel against the Bailee
A bailee, by accepting goods under a bailment, recognises the authority of the bailor to deliver those goods. Therefore, the bailee cannot subsequently deny that the bailor had the authority to make such bailment at the time when the bailment commenced.

Nevertheless, Explanation 2 allows the bailee to prove that a third person, to whom the goods were delivered, had a better title or superior right to the goods as against the bailor.
Illustration:
If A gives his car to B for servicing, a bailment is created. If C, who has a lawful claim over the car, takes delivery of the car from B, the bailee may justify such delivery by proving that C had a superior right to the goods.

3. Estoppel against the LicenseeA licensee, having accepted a licence from the licensor, is similarly estopped from denying that the licensor had authority to grant the licence at the time it commenced. The licensee referred to in this Section is distinct from the licensee mentioned under Section 122 and includes licences relating to proprietary or contractual rights such as patents or trademarks.

Scope and Underlying Principle
Section 123 applies the doctrine of estoppel to:

• acceptors of bills of exchange,
• bailees, and
• licensees.

The principle underlying this Section is that a person who has voluntarily entered into a legal relationship and accepted its benefits cannot later repudiate the authority of the other party to avoid obligations arising out of that relationship.

Judicial Illustration
In T.A. Umapati v. T.A. Musilamani (AIR 1987 Mad 156), the Madras High Court observed that once execution of a promissory note is admitted, a presumption arises that it was supported by consideration. The burden then lies on the executant to prove absence of consideration. This reflects the broader principle of estoppel embodied in Section 123.

Conclusion
Estoppel is a fundamental principle under the Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023, preventing parties from making contradictory assertions after having accepted a particular state of affairs. Chapter VIII (Sections 121–123) deals comprehensively with estoppel:

• Section 121 defines estoppel,
• Section 122 addresses estoppel of tenants and licensees of persons in possession, and
• Section 123 governs estoppel of the acceptor of a bill of exchange, bailee, and licensee.

These provisions collectively ensure consistency, fairness, and reliability in legal transactions and judicial proceedings.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023 – Estoppel of Tenant and of the Licensee of the Person in Possession [Section 122]

Section 122 embodies the doctrine of estoppel in the context of immovable property and applies to two specific relationships:

1. Landlord and tenant, and
2. Licensor and licensee (of a person in possession).

The foundational idea is that a person who enters into possession of immovable property by recognising another’s title or possession cannot later deny that title or possession while continuing to enjoy the benefit derived from it.

Statutory ProvisionSection 122 provides that:

• Tenant’s estoppel:
  No tenant of immovable property, nor any person claiming through such tenant, shall, during the continuance of the tenancy or at any time thereafter, be permitted to deny that the landlord had a title to such immovable property at the beginning of the tenancy.
• Licensee’s estoppel:
  No person who came upon any immovable property by the licence of a person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when the licence was granted.

(a) Scope and Rationale
This Section governs estoppel in:

• landlord–tenant relationships, and
• licensor–licensee relationships.

A tenant or licensee enters into possession by accepting the authority, title, or possession of the landlord or licensor. Equity and fairness require that such a person should not be allowed to question that authority while still enjoying the benefits of possession. The law prevents a person from “approbating and reprobating” at the same time.
The emphasis is on the words “at the beginning of the tenancy”. Even if the landlord’s title is defective, the tenant cannot deny it so long as he remains in possession under that tenancy.

(b) Estoppel of Tenant Continues So Long as Possession Continues
An estoppel arises the moment the relationship of landlord and tenant is created. This estoppel:

• operates during the subsistence of the tenancy, and
• continues even after the expiry of the tenancy period until possession is surrendered.

For the purposes of Section 122, a tenancy does not truly come to an end merely on the expiry of time; it ends only when the tenant restores possession to the landlord. As long as the tenant remains in possession, he is barred from disputing the landlord’s title.

(c) Estoppel Confined to the Initial State of Affairs
The estoppel under Section 122 is limited to the state of affairs existing at the commencement of the tenancy or licence. It does not prevent the tenant from relying on subsequent events, such as:

• acquisition of ownership by the tenant after the tenancy began, or
• loss of title by the landlord during the intervening period.

In Sri Ram Pasricha v. Jagannath & Ors., the Supreme Court reiterated that a tenant is estopped from questioning the landlord’s title in a suit for eviction. The Court further observed that the title of the landlord is generally irrelevant in eviction proceedings so long as the jural relationship of landlord and tenant subsists.
The estoppel may cease to operate in limited circumstances, such as:

• where the tenant has been validly attorned to a person having a superior or permanent title, or
• where the landlord has lost his title during the tenancy.

Key Principles Summarised

• The rule of estoppel subsists during the pendency of a tenancy, licence, or sub-lease, irrespective of defects in the landlord’s title.
• The tenant or licensee is barred from denying the landlord’s or licensor’s title as it existed at the commencement of the relationship.
• The estoppel continues until possession is openly surrendered or the occupant is evicted.

(d) Estoppel against Licensee
A licensee who has entered into possession under a licence must first surrender possession before challenging the licensor’s title. As long as the licensee continues in possession under the licence, he cannot deny that the licensor had lawful possession or authority at the time the licence was granted.

Conclusion
Under the Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023, Section 122 reinforces stability in property relations by preventing tenants and licensees from disputing the very title or possession under which they entered. The provision ensures consistency, fairness, and respect for contractual and possessory relationships, forming a vital part of the law of estoppel in evidence jurisprudence.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –Communications During Marriage (Section 128)

Introduction
The law of evidence recognizes certain relationships as deserving special protection, and marriage is one such relationship. Communications between spouses are presumed to be made in trust, confidence, and intimacy. To preserve marital harmony and privacy, the law grants a privilege to communications made during marriage.
Section 128 of the Bharatiya Sakshya Adhiniyam, 2023 embodies this principle by protecting spousal communications from compulsory disclosure in court.

Nature of Spousal Privilege
There are broadly three types of privileged communications under Indian evidence law:

1. Spousal privilege – Section 128
2. State privilege – Section 129
3. Legal professional privilege – Sections 132–134

Section 128 deals specifically with communications during marriage and is founded on the sanctity and confidentiality of the marital relationship.

Statutory Provision Explained
Section 128 provides that:

• Any person who is or has been married shall not be compelled to disclose any communication made to him during marriage by his spouse;
• Nor shall such person be permitted to disclose any such communication.

Exceptions
A married person may be compelled to disclose such communication in only two situations:

1. Consent
   • When the person who made the communication, or his representative-in-interest, consents to disclosure.
2. Proceedings Between Spouses
   • In suits between married persons themselves, or
   • In criminal proceedings where one spouse is prosecuted for an offence committed against the other.

Scope of Section 128
(a) Extent of the Protection

• The Section:
  • Prohibits husband or wife from disclosing marital communications;
  • Does not prohibit proof of the same facts by other independent means.
• The protection:
  • Extends to all communications, whether confidential or otherwise;
  • Applies only to communications made during the subsistence of marriage.
• The privilege:
  • Continues even after dissolution of marriage, annulment, or divorce,
  • Provided the communication was made while the marriage subsisted.

The rationale is that admitting such testimony would:

• Disturb domestic peace, and
• Undermine mutual confidence between spouses.

Meaning of “Communication”
​In M.C. Verghese v. T.J. Ponnan, the Supreme Court clarified the scope of the word communication:

• The term does not include correspondence (letters) produced and proved in court.
• When a letter is produced, it is the document itself that discloses the contents, not the spouse as a witness.

The Court identified two distinct branches of Section 128:

1. A married person shall not be compelled to disclose marital communications.
2. A married person shall not be permitted to disclose such communications without consent.

“To Whom He Is or Has Been Married”

• For the privilege to apply:
  • The communication must have been made during the subsistence of marriage.
• Communications made:
  • Before marriage, or
  • After dissolution of marriage,

are not protected, however confidential they may be.

• However, communications made during marriage remain protected even after divorce, due to the phrase “is or has been married”.

Representative-in-Interest

• A representative-in-interest means a person other than the spouse who claims through the spouse (e.g., legal heirs).
• Such a representative cannot waive the privilege for the purpose of disclosing marital communications.

Judicial ClarificationIn Baldev Singh v. Surinder Mohan Sharma, it was held that:

• The right to privacy extends not only to the matrimonial home but also to litigation relating to dissolution of marriage.
• A third party cannot intrude into marital privilege to advance his independent interests.

Exceptions Revisited (Note Form)Spousal communication may be disclosed only when:

• The communicating spouse or his representative-in-interest consents; or
• The dispute is:
  • Between husband and wife, or
  • A criminal prosecution by one spouse against the other.

Outside these situations, disclosure is strictly barred.

Object and Rationale of Section 128The object of Section 128 is to:

• Preserve marital harmony and trust;
• Protect privacy of spouses;
• Encourage free and honest communication within marriage;
• Prevent courts from becoming arenas for domestic disclosures.

The privilege is based on public policy, not merely personal convenience.

Critical AnalysisStrengths

• Strong protection of marital privacy
• Encourages trust and openness in marriage
• Prevents misuse of spousal testimony
• Continues protection even after divorce

Limitations

• May exclude potentially relevant evidence
• Requires careful judicial application of exceptions
• Does not protect communications made outside marriage

Conclusion
Section 128 of the Bharatiya Sakshya Adhiniyam, 2023 recognizes marriage as a protected relationship deserving legal confidentiality. By prohibiting compulsory or voluntary disclosure of communications made during marriage—subject to narrow exceptions—the provision safeguards domestic peace, privacy, and mutual confidence.
The law thus strikes a delicate balance between the needs of justice and the sanctity of marital relationships, affirming that some relationships are so fundamental that the law itself must stand guard over their privacy.