​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Judge to Decide as to the Admissibility of Evidence[Section 141]

Introduction
Section 141 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) lays down a foundational principle of evidence law—that the Judge is the final authority to decide whether a particular piece of evidence is admissible or not. This section emphasizes that only relevant evidence may be admitted, and it empowers the Judge to scrutinize the manner and basis of relevance before allowing evidence to be placed on record.

Statutory Framework of Section 141
Section 141 is divided into three interconnected parts, each dealing with a specific aspect of admissibility.

**1. When Either Party Proposes to Give Evidence of Any Fact[Section 141(1)]**
Provision Explained
When either party proposes to give evidence of any fact:

• The Judge may ask the party how the alleged fact, if proved, would be relevant.
• The Judge shall admit the evidence only if he is satisfied that:
  • The fact, if proved, would be relevant under the provisions of the Adhiniyam.

If the Judge is not satisfied as to relevance, the evidence must be rejected.
Key Principles

• Relevance is a question of law, not of choice of parties.
• The burden lies on the party proposing evidence to explain its relevance.
• The Judge acts as a gatekeeper, preventing irrelevant or speculative material from entering the record.

**2. When Evidence Is Admissible Only Upon Proof of Some Other Fact[Section 141(2)]**
Provision ExplainedSometimes, evidence of a fact becomes admissible only after another foundational fact is proved. In such cases:

• The foundational fact must be proved first,
  unless
• The party undertakes to prove such foundational fact later, and
• The Court is satisfied with the undertaking.

This ensures that evidence which is conditionally relevant is not admitted prematurely.

Illustrations ExplainedIllustration (a): Statement of a Deceased Person

• It is proposed to prove a statement made by a person alleged to be dead, which is relevant under Section 26 (e.g., dying declaration).
• Before admitting the statement:
  • The fact of death must first be proved.

📌 Without proof of death, the statement cannot be admitted.

Illustration (b): Secondary Evidence of a Lost Document

• A party proposes to prove the contents of a document by a copy, claiming the original is lost.
• Before admitting the copy:
  • The fact that the original document is lost must be proved.

📌 This prevents misuse of secondary evidence without laying a proper foundation.

**3. When the Relevancy of One Fact Depends on Another Fact[Section 141(3)]** (Contextual Link)
Although Section 141(3) was discussed earlier, it completes the scheme of admissibility by granting the Judge discretion over the order of proof where facts are interdependent.

• The Judge may:
  • Allow proof of the dependent fact first, or
  • Insist that the foundational fact be proved first.

This reinforces judicial flexibility while safeguarding fairness.

Scope and Importance of Section 1411. Judge as the Arbiter of Admissibility

• Parties cannot insist on leading evidence as a matter of right.
• The Judge alone decides:
  • Whether evidence is relevant
  • Whether conditions for admissibility are fulfilled

2. Exclusion of Irrelevant Evidence

• Section 141 empowers the Judge to:
  • Exclude irrelevant, speculative, or legally impermissible evidence
  • Prevent trials from being derailed by unnecessary material

3. Control over Trial Proceedings

• The Judge may:
  • Ask clarificatory questions on relevance
  • Regulate the sequence of evidence
  • Disallow evidence contrary to law or public policy

This ensures orderly, efficient, and fair trials.

Judicial Role in AdmissibilityThe Judge’s function under Section 141 is:

• Preventive – stopping irrelevant evidence at the threshold
• Protective – safeguarding parties from prejudice
• Facilitative – ensuring that relevant and legally admissible evidence is properly brought on record

Critical Analysis
Strengths

• Ensures judicial supervision over evidence
• Prevents misuse of procedural freedom
• Maintains purity of trial records
• Balances flexibility with legal safeguards

Limitations

• Wide discretion may lead to inconsistent application
• Requires high judicial diligence and reasoning

Conclusion
​Section 141 of the Bharatiya Sakshya Adhiniyam, 2023 encapsulates the principle that relevance is the soul of evidence and that admissibility is ultimately a judicial decision. By empowering the Judge to question relevance, insist on foundational facts, and regulate the order of proof, the provision strengthens the integrity of trials and ensures that justice is guided by law, logic, and fairness—not by procedural excesses.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023-Order of Production and Examination of Witnesses (Section 140)

Introduction
The manner in which witnesses are produced and examined before the court is crucial to the orderly conduct of trials. Section 140 of the Bharatiya Sakshya Adhiniyam, 2023 lays down the rule governing the order of production and examination of witnesses. It harmonizes evidence law with procedural laws and ensures flexibility where no specific procedure exists.

Statutory Provision – Section 140
Section 140 provides that:

• The order in which witnesses are produced and examined shall be regulated by:
  • The law and practice relating to civil procedure in civil cases, and
  • The law and practice relating to criminal procedure in criminal cases.
• In the absence of any such law or practice,
  👉 the order shall be determined by the discretion of the Court.

Thus, Section 140 does not itself prescribe a rigid order but refers to procedural laws and supplements them with judicial discretion.

Scope of Section 140Section 140 deals with:

• Who leads evidence first, and
• In what sequence witnesses are examined

It applies to:

• Civil proceedings
• Criminal proceedings
• Appeals
• Situations where procedural law is silent

(a) Order of Production in Civil ProceedingsIn civil cases, the order of production and examination of witnesses is governed by the Code of Civil Procedure, 1908 (CPC).
General Rule

• The plaintiff has the right to begin.
• The defendant then states his case and produces evidence.

Key CPC Provisions (Illustrative)

• Order XVII Rule 1 – Plaintiff begins the case.
• Order XVII Rule 3 – Plaintiff may lead rebuttal evidence if necessary.
• Civil Appeals (Order XLI Rule 16):
  • The appellant is first heard.
  • If the appeal is not dismissed at once:
    • The respondent is heard.
    • The appellant may reply.

Thus, in civil matters, the party who initiates the proceedings usually leads evidence first.

(b) Order of Production in Criminal ProceedingsIn criminal cases, the order of production and examination of witnesses is governed by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
General Rule

• The complainant or the prosecution has the right to begin.
• After prosecution evidence:
  • The accused may lead evidence, if he chooses.

Criminal Appeals

• The appellant begins.
• If required, the respondent is then heard.

This structure reflects the fundamental principle of criminal law:
The prosecution must first prove its case.

(c) Discretion of the CourtWhen Court’s Discretion Arises

• Where:
  • No specific provision exists in CPC or BNSS, or
  • Procedural law is silent on a particular point.

Nature of Discretion

• The party leading evidence generally decides:
  • Which witnesses to call, and
  • In what order.

However:

• The court retains supervisory discretion to:
  • Direct a different order,
  • Prevent abuse of process,
  • Ensure fairness and efficiency.

Important Limitation

• Judicial discretion must be:
  • Fair,
  • Reasonable, and
  • Not arbitrary.

Delay in Examination of Witnesses

• Mere delay in examining a witness:
  • Does not automatically render his evidence unreliable.
• Weight of such evidence depends on:
  • Facts of the case,
  • Explanation for delay,
  • Overall credibility.

Thus, delay affects weight, not admissibility.

Why Section 140 Is Important

• Ensures coordination between:
  • Evidence law and procedural law
• Prevents confusion regarding:
  • Sequence of witnesses
• Provides flexibility to courts
• Helps maintain orderly trials

Critical Analysis
Strengths

1. Aligns evidence law with procedural laws
2. Avoids rigid technicalities
3. Gives courts flexibility where procedure is silent
4. Prevents procedural injustice
5. Facilitates smooth conduct of trials

Limitations

1. Heavy reliance on judicial discretion
2. Possibility of inconsistent practice
3. Requires careful judicial management

Conclusion
​Section 140 of the Bharatiya Sakshya Adhiniyam, 2023 lays down a practical and flexible rule for determining the order of production and examination of witnesses. By deferring primarily to civil and criminal procedural laws, and secondarily to judicial discretion, the provision ensures that trials proceed in an orderly, fair, and efficient manner.
Ultimately, Section 140 reinforces the principle that procedure is the handmaid of justice, not its master, and that courts must balance structure with flexibility to achieve substantive justice.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023-Introduction to Examination of Witnesses (Chapter X: Sections 140–168)

A witness is a person who sees, knows, or vouches for a fact, and who gives testimony before a court of law. Such testimony may be given under oath or affirmation, either orally in person, or through written deposition or affidavit, as permitted by law. Witnesses form the backbone of the judicial fact-finding process.
The examination of witnesses is a crucial stage of every trial. It is through the systematic examination, cross-examination, and re-examination of witnesses that facts are brought before the court, tested for truth, and evaluated for reliability. Witness testimony is regarded as one of the most reliable forms of evidence, because it is based on personal knowledge and direct perception of events.

Chapter X of the Bharatiya Sakshya Adhiniyam, 2023 (Sections 140–168) comprehensively deals with the examination and cross-examination of witnesses. The provisions of this chapter regulate:

• The order of production and examination of witnesses
• The manner in which witnesses are questioned
• The scope and limits of examination-in-chief, cross-examination, and re-examination
• The admissibility and testing of witness testimony

This chapter operates on the assumption that:

• Witnesses are already competent and compellable, as determined under the preceding chapter, and
• Witnesses and documents have been properly brought before the court in accordance with the Code of Civil Procedure (CPC) and the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

An important feature of Chapter X is Section 168, which confers wide powers upon the court. Under this provision, the judge is empowered to put questions to witnesses and to order the production of documents at any stage of the proceedings, in order to discover the truth and ensure a just decision.

Overall, Chapter X reflects the fundamental principle that justice is best achieved not merely by the production of evidence, but by its careful and controlled examination, under the supervision of the court.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023
Number of Witnesses (Section 139)

Introduction
In the administration of justice, it is often assumed that a greater number of witnesses leads to stronger proof. Indian evidence law rejects this assumption. Section 139 of the Bharatiya Sakshya Adhiniyam, 2023 clearly lays down that no particular number of witnesses is required to prove any fact. What matters is not how many witnesses are examined, but how credible, reliable, and trustworthy the evidence is.
This provision reflects a mature and practical approach to evidence, recognising social realities and focusing on the quality of proof rather than numerical strength.

Statutory Provision – Section 139
Section 139 states:
No particular number of witnesses shall in any case be required for the proof of any fact.
Thus:

• A fact may be proved by:
  • A single witness, or
  • Multiple witnesses, or
  • Even by circumstantial evidence alone

The court must evaluate the weight and credibility of the evidence as a whole.

Scope and Historical Background
Old English Rule: “Unus Nullus”

• Under early English common law:
  • Unus nullus meant “one is equal to none”
  • Evidence was counted, not weighed

Modern Rule (Now Accepted in India and England)

• The rigid rule has been abandoned
• The accepted principle today is:

Evidence must be weighed, not counted
Section 139 embodies this modern principle.

Object of Section 139
The object of Section 139 is to:

• Prevent miscarriage of justice due to technical insistence on plurality of witnesses
• Acknowledge that:
  • Members of the public are often reluctant to depose in court
• Ensure that offenders do not escape punishment merely because:
  • Only one witness is available

If plurality of witnesses were mandatory:

• Many crimes would go unpunished
• Justice would be seriously hampered

Quality vs Quantity of Evidence
Section 139 establishes that:

• Quality of evidence is decisive
• Quantity of witnesses is immaterial

A conviction can legally be based on:

• The testimony of a sole witness, provided:
  • The witness is reliable
  • The testimony is trustworthy

Classification of Oral Testimony (Judicially Recognised)
Courts generally classify oral testimony into three categories:

1. Wholly Reliable
   • Testimony inspires full confidence
   • Conviction may be safely based on it alone
2. Wholly Unreliable
   • Testimony is inherently improbable or false
   • Must be rejected outright
3. Neither Wholly Reliable Nor Wholly Unreliable
   • Testimony contains some doubts
   • Court must look for corroboration as a rule of prudence

This classification guides courts in deciding whether corroboration is necessary.

Judicial Interpretation
Shivaji Sahebrao Bobade v. State of Maharashtra
The Supreme Court held:

• It is quality, not quantity, of evidence that matters
• Even in serious cases like murder:
  • Conviction can be based on a single witness, if reliable
• These principles are now settled law

Namdeo v. State of Maharashtra
The Supreme Court laid down important principles:

1. The quality of evidence, not the number of witnesses, is material
2. Section 139 clearly states that:
   • No fixed number of witnesses is required
3. A court can and may act on the testimony of a single witness, even if uncorroborated
4. One credible witness may outweigh:
   • Several witnesses of doubtful or indifferent character
5. Corroboration should not be insisted upon:
   • Unless required by statute, or
   • Unless the nature of testimony itself demands it as a rule of prudence

When Is Corroboration Required?
Corroboration of a sole witness is required only when:

• The law expressly mandates it, or
• The testimony:
  • Falls into the third category (neither wholly reliable nor wholly unreliable), or
  • Appears suspicious or doubtful

Otherwise, corroboration is not a legal necessity.

Practical Implications of Section 139

• Courts should not reject prosecution cases merely because:
  • All eyewitnesses were not examined
• Delay, fear, social pressure, or inconvenience often prevents witnesses from coming forward
• Section 139 ensures:
  • Justice is not sacrificed at the altar of numbers

Critical Analysis
Strengths

1. Prevents technical acquittals
2. Recognises ground realities of litigation
3. Focuses on truth and credibility
4. Strengthens judicial discretion
5. Aligns with modern evidentiary principles

Limitations

1. Heavy reliance on judicial assessment
2. Risk of misuse if credibility is wrongly evaluated
3. Requires careful and reasoned judgment

Conclusion
Section 139 of the Bharatiya Sakshya Adhiniyam, 2023 firmly establishes that no particular number of witnesses is required to prove any fact. The law emphasises that truth does not depend on numbers, but on credibility.
By allowing courts to base findings even on the testimony of a single trustworthy witness, Section 139 prevents injustice, reflects social realities, and reinforces the principle that justice is achieved by weighing evidence, not counting witnesses.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023Accomplice (Section 138)
Introduction
​Criminal offences are often committed with the participation of more than one person. In such cases, one of the participants in the crime may come forward to give evidence against the others. Such a person is known as an accomplice.
Section 138 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the competency, admissibility, and evidentiary value of accomplice testimony. This provision plays a vital role in prosecuting complex crimes such as conspiracies, organized offences, and economic crimes.

Section 138 – Statutory Provision
Section 138 states that:

• An accomplice is a competent witness against an accused person; and
• A conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice.

Thus, accomplice evidence is legally admissible, but corroboration is mandatory for sustaining a conviction.

Changes Introduced under Bharatiya Sakshya Adhiniyam 2023
Under the Indian Evidence Act, 1872, conviction based solely on the uncorroborated testimony of an accomplice was not illegal, though courts followed corroboration as a rule of prudence.
Under the Bharatiya Sakshya Adhiniyam, 2023:

• Corroboration has become a legal requirement, not merely a practice.
• The earlier rule of prudence has now attained the force of law.
• Courts must insist on independent corroborative evidence before upholding a conviction based on accomplice testimony.

Scope of Section 138

• An accomplice is competent to testify provided he is not an accused at the time of giving evidence in that case.
• Accomplice evidence is admitted on the ground of necessity, since:
  • Without such evidence, it is often impossible to bring the principal offenders to justice.
• However, due to the tainted nature of such testimony, courts must apply strict scrutiny and corroboration.

Who Is an Accomplice?
An accomplice is a person who knowingly and voluntarily participates in the commission of a crime. He is a guilty associate or partner in crime.
An accomplice may be a person who:

• Assists or abets the commission of an offence
• Participates in a criminal conspiracy
• Conceals or facilitates the crime
• Provides false information or evidence
• Helps the offender evade arrest or punishment

An accomplice may be liable for the same offence as the principal offender, depending on the facts and law.

Accomplice and Approver
An approver is an accomplice who:

• Is tendered pardon by the court, and
• Agrees to make a full and true disclosure of all circumstances of the offence.

Once pardon is granted:

• The accomplice becomes an approver, and
• Testifies as a prosecution witness.

Case Law: Laxmipat Choraria v. State of Maharashtra

• An airline stewardess, an accomplice in gold smuggling, testified for the prosecution.
• It was argued that she should have been prosecuted instead of being examined as a witness.

Held:

• An accomplice is a competent witness.
• Article 20(3) of the Constitution protects only an accused, not an accomplice examined as a witness.
• Her evidence could not be excluded merely because she was an accomplice.

Judicial Principles Governing Accomplice Evidence
Case Law: Chandra Prakash v. State of RajasthanThe Supreme Court summarized the law on accomplice evidence and laid down the following principles:
(i) Competency vs Safety

• Section 138 BSA (earlier Section 133) is a rule of law: accomplice is competent.
• Section 119 Illustration (b) BSA is a rule of caution: it is unsafe to convict on accomplice testimony alone.

(ii) Nature of Corroboration

• Corroboration must:
  • Connect the accused with the crime.
  • Be in material particulars.
• It may be:
  • Direct or circumstantial.
• Corroboration must come from an independent source.
• One accomplice cannot corroborate another accomplice.

(iii) Double Test for Approver’s EvidenceThe evidence of an approver must satisfy a double test:

1. The approver must be a reliable and trustworthy witness.
2. His testimony must receive sufficient independent corroboration.

(iv) Caution in Accepting Approver’s Evidence

• An approver is a tainted witness, having bargained for immunity.
• His testimony must:
  • Appear natural and probable.
  • Involve himself in the crime.
  • Implicate the accused beyond reasonable doubt.

Accomplice in Rape and Sexual Offence Cases
In sexual offences:

• A woman may or may not be an accomplice depending on the circumstances.

Case Law: S. Ramakrishna v. State

• The Supreme Court held that:
  • The victim of rape is not an accomplice.
  • She cannot be equated with a partner in crime.
  • Her testimony is akin to that of an injured witness.
  • Corroboration is not mandatory if her evidence is reliable.

State of U.P. v. Chhoteylal

• The prosecutrix’s evidence cannot be treated with the suspicion applicable to a participant criminis.
• Her reliable testimony alone can sustain conviction.

Types of Accomplices
Accomplices are classified based on their degree of involvement:
(i) Principal Offender – First Degree

• Person who directly commits the offence.
• If several persons jointly commit a crime, each is a principal offender.

(ii) Principal Offender – Second Degree

• Person who:
  • Aids, abets, or assists in committing the offence.
  • Is present at the crime scene.

(iii) Accessory Before the Fact

• Person who:
  • Encourages, incites, or plans the offence.
  • Is not present during its commission.

(iv) Accessory After the Fact

• Person who:
  • Assists the offender after the crime.
  • Helps in escape, concealment, or evasion of law.

Accomplice vs Co-Accused

• Accomplice:
  • A guilty associate in crime.
  • May become an approver if pardoned under Section 343 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
  • Corroboration is mandatory.
• Co-Accused:
  • A person jointly accused of the offence.
  • His confession is weak evidence.
  • Under Section 24 BSA, it may be used only for corroboration, not as the sole basis of conviction.

Critical AnalysisStrengths

1. Recognizes the necessity of accomplice evidence
2. Converts judicial caution into statutory mandate
3. Protects accused from false implication
4. Strengthens fairness in criminal trials
5. Aligns with constitutional safeguards

Limitations

1. Heavy reliance on judicial assessment of corroboration
2. Approver testimony may still be motivated
3. Risk of weak corroboration being overvalued

Conclusion
Section 138 of the Bharatiya Sakshya Adhiniyam, 2023 strikes a careful balance between practical necessity and judicial caution. While it recognizes that accomplices are often indispensable witnesses in complex crimes, it firmly mandates corroboration as a rule of law.
By elevating the rule of prudence to a statutory requirement, the Adhiniyam strengthens safeguards against wrongful conviction while ensuring that serious offenders do not escape justice merely due to lack of direct evidence.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Witness Not Excused from Answering on Ground that Answer Will Criminate [Section 137]

Introduction
In judicial proceedings, courts must balance two competing interests:

1. The need to discover the truth and ensure fair justice, and
2. The protection of individuals against self-incrimination.

Section 137 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) addresses this balance in relation to witnesses. It makes it clear that a witness cannot refuse to answer a relevant question merely because the answer may incriminate him, while simultaneously granting protection against misuse of such compelled answers.

Full Definition of BNSS
BNSS stands for Bharatiya Nagarik Suraksha Sanhita, 2023.
It is the principal criminal procedural law of India, which has replaced the Code of Criminal Procedure, 1973 (CrPC). The BNSS governs:

• Investigation of offences
• Arrest, bail, and custody
• Recording of statements
• Trial procedures
• Appeals and revisions

BNSS provisions often interact with the Bharatiya Sakshya Adhiniyam, especially in matters concerning witness examination, accused testimony, and evidentiary safeguards.

Section 137 – Statutory Provision (Explained Simply)Section 137 provides that:

• A witness shall not be excused from answering any question relating to a matter relevant to the matter in issue, in any civil or criminal proceeding,
• Merely on the ground that:
  • The answer will criminate him, or
  • May tend directly or indirectly to criminate him, or
  • May expose him to a penalty or forfeiture of any kind.

Proviso (Protective Clause)However:

• Any answer which a witness is compelled to give:
  • Shall not subject him to arrest or prosecution, and
  • Shall not be proved against him in any criminal proceeding,

👉 Except in a prosecution for giving false evidence (perjury).

Scope and Meaning of Section 1371. Rule Against Self-IncriminationThe general principle against self-incrimination is expressed in the maxim:
nemo tenetur se ipsum prodere – no one is bound to criminate himself.

• In India, this protection exists at two levels:
  • For accused persons → Article 20(3) of the Constitution
  • For witnesses → Section 137 of the BSA

2. Compulsion to Answer Relevant Questions

• If a question is relevant to the matter in issue:
  • A witness must answer it, even if:
    • It exposes him to civil or criminal liability, or
    • It may lead to penalty or forfeiture.

The witness cannot refuse merely on the ground of possible self-incrimination.

3. Protective Immunity under the ProvisoSection 137 protects witnesses by granting use immunity:

• The compelled answer:
  • Cannot be used to arrest or prosecute the witness, and
  • Cannot be used as evidence against him in any criminal proceeding.

This immunity applies only to compelled answers, not to voluntary statements.

Section 137 and Article 20(3) of the ConstitutionArticle 20(3) – Constitutional Protection

• Applies only to an accused person.
• Protection is absolute:
  • An accused cannot be compelled to be a witness against himself.

Section 137 – Statutory Protection for Witnesses

• Applies only to witnesses, not accused persons.
• Protection is qualified, not absolute.

Key Differences (Note Form)Article 20(3) vs Section 137

• Who is Protected
  • Article 20(3): Accused person
  • Section 137: Witness
• Nature of Protection
  • Article 20(3): Absolute
  • Section 137: Qualified
• Compulsion
  • Article 20(3): No compulsion permitted
  • Section 137: Compulsion permitted for relevant questions
• Use of Answer
  • Article 20(3): No compelled testimony at all
  • Section 137: Compelled answer cannot be used against the witness

Claiming the Privilege under Section 137

• The witness must:
  • Claim the privilege when an incriminating question is put.
• Even after claiming:
  • The court may still compel the witness to answer.
• In such cases:
  • The proviso automatically protects the witness from prosecution based on that answer.

Voluntary Answers vs Compelled Answers

• Voluntary Answer:
  • Not protected by the proviso.
  • May be used against the witness.
• Compelled Answer:
  • Fully protected under Section 137.
  • Cannot be used in any criminal proceeding (except perjury).

Accused Appearing as a Witness under BNSSUnder Section 353 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS):

• An accused may volunteer to appear as a defence witness.

Legal Consequences

• By doing so:
  • The accused waives the constitutional protection under Article 20(3).
  • He is treated as an ordinary witness.

He may:

• Be cross-examined, and
• Be asked questions tending to incriminate him.

However:

• Answers compelled from him will still receive protection under the proviso to Section 137, except in perjury proceedings.

Perjury Exception

• If a witness gives:
  • A false answer under oath,

👉 He may still be:

• Prosecuted for giving false evidence, even though the answer was compelled.

Section 137 does not protect falsehood.

Why Section 137 Is Important

• Ensures:
  • Truth is not suppressed
  • Relevant facts come before the court
• Protects witnesses from:
  • Fear of prosecution
  • Reluctance to testify

It encourages full and frank disclosure without sacrificing fairness.

Critical AnalysisStrengths

1. Balances truth-finding with witness protection
2. Encourages honest testimony
3. Prevents abuse of privilege by witnesses
4. Harmonizes statutory and constitutional safeguards
5. Supports efficient administration of justice

Limitations

1. Qualified protection may cause anxiety to witnesses
2. Requires judicial vigilance to ensure compulsion is lawful
3. Distinction between voluntary and compelled answers can be complex

ConclusionSection 137 of the Bharatiya Sakshya Adhiniyam, 2023 embodies a carefully calibrated balance between the needs of justice and the protection against self-incrimination. While it compels witnesses to answer relevant questions even if incriminating, it simultaneously grants immunity against the use of such compelled answers in criminal proceedings.
By distinguishing between the absolute constitutional protection of accused persons under Article 20(3) and the qualified statutory protection of witnesses, Section 137 ensures that courts can uncover the truth without unjustly penalising those who assist in the administration of justice.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Accomplice (Section 138)
Introduction
Criminal offences are often committed with the participation of more than one person. In such cases, one of the participants in the crime may come forward to give evidence against the others. Such a person is known as an accomplice.

Section 138 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the competency, admissibility, and evidentiary value of accomplice testimony. This provision plays a vital role in prosecuting complex crimes such as conspiracies, organized offences, and economic crimes.

Section 138 – Statutory Provision 
Section 138 states that:

• An accomplice is a competent witness against an accused person; and
• A conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice.

Thus, accomplice evidence is legally admissible, but corroboration is mandatory for sustaining a conviction.

Changes Introduced under Bharatiya Sakshya Adhiniyam, 2023
Under the Indian Evidence Act, 1872, conviction based solely on the uncorroborated testimony of an accomplice was not illegal, though courts followed corroboration as a rule of prudence.
Under the Bharatiya Sakshya Adhiniyam, 2023:

• Corroboration has become a legal requirement, not merely a practice.
• The earlier rule of prudence has now attained the force of law.
• Courts must insist on independent corroborative evidence before upholding a conviction based on accomplice testimony.

Scope of Section 138

• An accomplice is competent to testify provided he is not an accused at the time of giving evidence in that case.
• Accomplice evidence is admitted on the ground of necessity, since:
  • Without such evidence, it is often impossible to bring the principal offenders to justice.
• However, due to the tainted nature of such testimony, courts must apply strict scrutiny and corroboration.

Who Is an Accomplice?
An accomplice is a person who knowingly and voluntarily participates in the commission of a crime. He is a guilty associate or partner in crime.
An accomplice may be a person who:

• Assists or abets the commission of an offence
• Participates in a criminal conspiracy
• Conceals or facilitates the crime
• Provides false information or evidence
• Helps the offender evade arrest or punishment

An accomplice may be liable for the same offence as the principal offender, depending on the facts and law.

Accomplice and Approver
An approver is an accomplice who:

• Is tendered pardon by the court, and
• Agrees to make a full and true disclosure of all circumstances of the offence.

Once pardon is granted:

• The accomplice becomes an approver, and
• Testifies as a prosecution witness.

Case Law: Laxmipat Choraria v. State of Maharashtra

• An airline stewardess, an accomplice in gold smuggling, testified for the prosecution.
• It was argued that she should have been prosecuted instead of being examined as a witness.

Held:

• An accomplice is a competent witness.
• Article 20(3) of the Constitution protects only an accused, not an accomplice examined as a witness.
• Her evidence could not be excluded merely because she was an accomplice.

Judicial Principles Governing Accomplice Evidence
Case Law: Chandra Prakash v. State of RajasthanThe Supreme Court summarized the law on accomplice evidence and laid down the following principles:
(i) Competency vs Safety

• Section 138 BSA (earlier Section 133) is a rule of law: accomplice is competent.
• Section 119 Illustration (b) BSA is a rule of caution: it is unsafe to convict on accomplice testimony alone.

(ii) Nature of Corroboration

• Corroboration must:
  • Connect the accused with the crime.
  • Be in material particulars.
• It may be:
  • Direct or circumstantial.
• Corroboration must come from an independent source.
• One accomplice cannot corroborate another accomplice.

(iii) Double Test for Approver’s EvidenceThe evidence of an approver must satisfy a double test:

1. The approver must be a reliable and trustworthy witness.
2. His testimony must receive sufficient independent corroboration.

(iv) Caution in Accepting Approver’s Evidence

• An approver is a tainted witness, having bargained for immunity.
• His testimony must:
  • Appear natural and probable.
  • Involve himself in the crime.
  • Implicate the accused beyond reasonable doubt.

Accomplice in Rape and Sexual Offence CasesIn sexual offences:

• A woman may or may not be an accomplice depending on the circumstances.

Case Law: S. Ramakrishna v. State

• The Supreme Court held that:
  • The victim of rape is not an accomplice.
  • She cannot be equated with a partner in crime.
  • Her testimony is akin to that of an injured witness.
  • Corroboration is not mandatory if her evidence is reliable.

State of U.P. v. Chhoteylal

• The prosecutrix’s evidence cannot be treated with the suspicion applicable to a participant criminis.
• Her reliable testimony alone can sustain conviction.

Types of Accomplices
Accomplices are classified based on their degree of involvement:
(i) Principal Offender – First Degree

• Person who directly commits the offence.
• If several persons jointly commit a crime, each is a principal offender.

(ii) Principal Offender – Second Degree

• Person who:
  • Aids, abets, or assists in committing the offence.
  • Is present at the crime scene.

(iii) Accessory Before the Fact

• Person who:
  • Encourages, incites, or plans the offence.
  • Is not present during its commission.

(iv) Accessory After the Fact

• Person who:
  • Assists the offender after the crime.
  • Helps in escape, concealment, or evasion of law.

Accomplice vs Co-Accused

• Accomplice:
  • A guilty associate in crime.
  • May become an approver if pardoned under Section 343 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
  • Corroboration is mandatory.
• Co-Accused:
  • A person jointly accused of the offence.
  • His confession is weak evidence.
  • Under Section 24 BSA, it may be used only for corroboration, not as the sole basis of conviction.

Critical Analysis
Strengths

1. Recognizes the necessity of accomplice evidence
2. Converts judicial caution into statutory mandate
3. Protects accused from false implication
4. Strengthens fairness in criminal trials
5. Aligns with constitutional safeguards

Limitations

1. Heavy reliance on judicial assessment of corroboration
2. Approver testimony may still be motivated
3. Risk of weak corroboration being overvalued

ConclusionSection 138 of the Bharatiya Sakshya Adhiniyam, 2023 strikes a careful balance between practical necessity and judicial caution. While it recognizes that accomplices are often indispensable witnesses in complex crimes, it firmly mandates corroboration as a rule of law.
By elevating the rule of prudence to a statutory requirement, the Adhiniyam strengthens safeguards against wrongful conviction while ensuring that serious offenders do not escape justice merely due to lack of direct evidence.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023-Examination of Witnesses (Section 142)
IntroductionThe examination of witnesses is a fundamental part of the judicial process. The truthfulness, reliability, and relevance of evidence largely depend on how witnesses are examined in court. Section 142 of the Bharatiya Sakshya Adhiniyam, 2023 defines the three distinct stages of witness examination, each serving a specific and essential function in ensuring a fair trial.

Section 142 – Statutory Classification of Examination of WitnessesSection 142 recognizes three types of examination of witnesses:

(i) Examination-in-Chief – Section 142(1)Meaning

• Examination-in-chief is the examination of a witness by the party who calls him.
• It is also known as direct examination.

Purpose

• To place the witness’s version of facts before the court.
• To bring out evidence favourable to the party calling the witness.

Nature

• The witness must:
  • State facts, not opinions or legal conclusions.
• Leading questions are generally not permitted, except with the court’s permission.

(ii) Cross-Examination – Section 142(2)Meaning

• Cross-examination is the examination of a witness by the adverse or opposite party.

Purpose

• To test the truthfulness and accuracy of the witness.
• To expose:
  • Contradictions
  • Inconsistencies
  • Bias or interest
  • Unreliability

Nature

• Leading questions are permitted.
• The scope is wide and not confined to matters raised in examination-in-chief.

Cross-examination is often described as the most powerful tool for discovering the truth.

(iii) Re-Examination – Section 142(3)Meaning

• Re-examination is the examination of a witness by the party who called him, conducted after cross-examination.

Purpose

• To:
  • Explain ambiguities
  • Clarify doubtful statements
  • Remove confusion created during cross-examination

Limitations

• Re-examination must be confined to matters referred to in cross-examination.
• Introduction of new matters requires permission of the court, and if allowed:
  • The adverse party has a right to further cross-examination.

Importance of Section 142Section 142 provides the foundational framework for witness examination. It ensures that:

• Evidence is presented systematically.
• Both parties are given a fair opportunity to:
  • Present their case
  • Challenge the opponent’s evidence

This section works in harmony with Section 143, which prescribes the order and scope of these examinations.

Comparative Overview (Note Form)

• Examination-in-Chief
  • Conducted by the party calling the witness
  • Objective: narration of facts
• Cross-Examination
  • Conducted by the adverse party
  • Objective: testing credibility and truth
• Re-Examination
  • Conducted by the original party
  • Objective: clarification and explanation

Critical AnalysisStrengths

1. Provides clear structure to witness examination
2. Ensures fairness and balance between parties
3. Encourages effective truth-finding
4. Prevents procedural confusion
5. Strengthens adversarial justice system

Limitations

1. Effectiveness depends on advocacy skills
2. Requires strict judicial control to prevent abuse
3. Re-examination scope is limited

ConclusionSection 142 of the Bharatiya Sakshya Adhiniyam, 2023 clearly defines the three essential stages of witness examination--examination-in-chief, cross-examination, and re-examination. Each stage has a distinct role and together they form the backbone of evidentiary procedure in Indian courts.

By providing this structured framework, Section 142 ensures that witness testimony is presented, tested, and clarified in a fair and orderly manner, thereby advancing the cause of justice.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023- When the Relevancy of One Alleged Fact Depends upon Another Alleged Fact [Section 141(3)]
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IntroductionIn many cases, the relevance of a particular fact does not exist independently. Instead, it depends upon the prior proof of another fact. Section 141(3) of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) addresses this situation and vests the trial judge with discretion to regulate the order in which such facts may be proved. This provision ensures flexibility in trials while preserving judicial control over admissibility and relevance.

Statutory Provision – Section 141(3) Section 141(3) provides that:
If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either:

• Permit evidence of the first fact to be given before the second fact is proved, or
• Require evidence of the second fact to be given first before permitting evidence of the first fact.

Thus, the law does not impose a rigid sequence but leaves the order of proof to judicial discretion.

Illustrations ExplainedIllustration (c): Receiving Stolen Property

• A is accused of receiving stolen property knowing it to be stolen.
• Prosecution proposes to prove that A denied possession of the property.
• The relevance of denial depends on identification of the property.

📌 Judicial Discretion:
The Court may:

• Require the property to be identified first, and then prove denial, or
• Permit proof of denial before identification, depending on the circumstances.

Illustration (d): Chain of Cause and Effect

• Fact A is alleged to be the cause or effect of a fact in issue.
• Intermediate facts B, C, and D must exist to connect A with the fact in issue.

📌 Judicial Discretion:
The Court may:

• Allow proof of A first, and later insist on proof of B, C, and D, or
• Require B, C, and D to be proved before permitting proof of A.

This is especially relevant in circumstantial evidence cases, where facts must be linked in a logical chain.

Scope of Section 141(3)1. Admissibility Is a Question of Law

• Determination of relevance and admissibility is exclusively within the domain of the Judge.
• Parties can adduce evidence only of facts declared relevant under BSA.

2. Duty of the JudgeThe Judge must:

• Admit all relevant evidence, and
• Exclude all irrelevant evidence.

To decide admissibility, the Judge may:

• Ask the party proposing to give evidence how the alleged fact becomes relevant, and
• Decide whether such evidence should be allowed.

3. Judicial Control over Proceedings

• The Judge may:
  • Disallow irrelevant or hypothetical questions,
  • Exclude questions contrary to public policy or law,
  • Prevent misuse of evidence to confuse or prejudice proceedings.

This reinforces the principle that the Judge must always remain in control of the trial.

Connection with Examination of WitnessesEvidence does not come to court automatically; it is unfolded through witnesses by a structured process:
Stages of Examination

• Examination-in-chief – Witness narrates facts supporting the case of the party calling him.
• Cross-examination – Opposite party tests the truth and reliability of that narration.
• Re-examination – Clarifies doubts or explanations arising from cross-examination.

These stages are governed by:

• Section 142 – Types of examination
• Section 143 – Order and scope of examinations
• Section 146 – Leading questions

Section 141(3) operates before and during these stages, by determining whether and when a fact can be proved at all.

Why Section 141(3) Is Important

• Prevents premature rejection of evidence merely due to sequence
• Avoids rigid technicalities in trials
• Enables courts to deal effectively with complex factual matrices
• Particularly useful in:
  • Circumstantial evidence cases
  • Property and fraud cases
  • Criminal cases involving intent, knowledge, or motive

Critical AnalysisStrengths

1. Provides flexibility in the order of proof
2. Strengthens judicial discretion
3. Prevents miscarriage of justice due to technical sequencing
4. Aids efficient trial management
5. Suitable for complex evidentiary chains

Limitations

1. Heavy reliance on judicial discretion
2. Possibility of inconsistent application
3. Requires careful balancing to avoid prejudice

ConclusionSection 141(3) of the Bharatiya Sakshya Adhiniyam, 2023 recognizes that relevance is often conditional and interdependent. By empowering the Judge to regulate the sequence in which such facts are proved, the provision ensures that justice is not obstructed by rigid procedural formalism.
Ultimately, this section reinforces the role of the Judge as the gatekeeper of relevance and admissibility, ensuring that evidence is presented in a manner that is logical, fair, and conducive to the discovery of truth.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –
Questions Intended to Insult or Annoy (Section 155)

Case Scenario (Beginning as Required)During a criminal trial involving the kidnapping and murder of a child, a woman witness is subjected to humiliating and scandalous questions about her personal life, even though such matters have no connection with the issues before the court. The defence argues that such questions are part of cross-examination. The judge must decide whether these questions should be allowed or stopped.
This situation is governed by Section 155 of the Bharatiya Sakshya Adhiniyam, 2023.

Purpose of Section 155Section 155 is designed to protect witnesses from harassment, humiliation, and unnecessary embarrassment during judicial proceedings. It recognizes that while cross-examination is a powerful tool to test truth, it must not be misused to insult, annoy, or intimidate witnesses.

Statutory Provision (Explained Simply)Section 155 provides that:
The Court shall forbid any question which appears to it:

• To be intended to insult or annoy, or
• Which, though otherwise proper, appears to the Court needlessly offensive in form.

Thus, even a relevant question may be disallowed if its form is offensive and unnecessary.

Relationship Between Sections 154 and 155

• Section 154 empowers the court to forbid:
  • Indecent or scandalous questions (unless they relate to facts in issue)
• Section 155 empowers the court to forbid:
  • Questions intended to insult or annoy
  • Questions that are unnecessarily offensive in form

Together, these sections give the trial judge broad control over courtroom questioning.

Scope of Section 155What the Court Must Forbid

• Questions asked:
  • With the intention to insult or humiliate
  • To annoy or harass a witness
  • Using abusive, degrading, or suggestive language

What the Court May Allow

• Even indecent or scandalous questions:
  • If they directly relate to a fact in issue
  • And are necessary for a fair decision

Judicial Discretion

• If such questions:
  • Only indirectly relate to the case, or
  • Are framed offensively without necessity

👉 The court has discretion to forbid them.

Duty of the Trial Judge

• The judge must:
  • Prevent introduction of scandalous or offensive material into the record
  • Ensure dignity and fairness in proceedings
  • Intervene promptly when questioning crosses permissible limits

Where a question:

• Is intended to insult or annoy, or
• Is unnecessarily offensive,

👉 Judicial intervention is mandatory.

Illustrative Case LawState of Uttar Pradesh v. Raghubir Singh

• Indecent and scandalous questions were put to a woman witness
• Her child had been kidnapped and murdered
• Questions related to paternity, which was not in issue

Held:

• Allowing such questions was improper
• The Supreme Court emphasized the duty of courts to protect witnesses, especially vulnerable ones

Why Such Questions Are Restricted

• To preserve:
  • Dignity of witnesses
  • Decorum of judicial proceedings
• To prevent:
  • Secondary victimisation
  • Intimidation and coercion
• To ensure:
  • Evidence is tested fairly, not abusively

Critical AnalysisStrengths

1. Protects witnesses from harassment
2. Encourages truthful testimony without fear
3. Maintains courtroom dignity
4. Prevents abuse of cross-examination
5. Upholds constitutional values of fairness

Limitations

1. Requires strong judicial vigilance
2. Risk of inconsistent application
3. Balancing relevance and sensitivity can be challenging

10 Illustrative Case Scenarios

1. Offensive questioning of sexual assault survivor barred
2. Personal insults during cross-examination stopped
3. Abusive tone disallowed though question relevant
4. Scandalous questions unrelated to facts excluded
5. Properly framed relevant questions allowed
6. Witness harassed – court intervenes
7. Defence attempts intimidation – prevented
8. Judge rephrases offensive question
9. Vulnerable witness protected
10. Fair trial preserved

ConclusionSection 155 of the Bharatiya Sakshya Adhiniyam, 2023 ensures that cross-examination remains a tool for truth, not a weapon for humiliation. By mandating courts to forbid questions intended to insult or annoy or those framed in a needlessly offensive manner, the provision safeguards the dignity of witnesses and the integrity of judicial proceedings.
The decision in State of U.P. v. Raghubir Singh underscores the importance of judicial sensitivity, especially when dealing with vulnerable witnesses. Ultimately, Section 155 reflects the principle that justice must be pursued with humanity, fairness, and respect.