Judicial Services Exam (PCS-J) Law of Evidence Flashcards

24 sample cards from the Law of Evidence deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. What did Anvar P.V. v. P.K. Basheer and Arjun Panditrao Khotkar hold about the Section 65B certificate?

   Anvar P.V. (2014) held that a Section 65B(4) certificate is MANDATORY for admitting secondary electronic evidence, overruling Navjot Sandhu. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) reaffirmed that the certificate is a condition precedent to admissibility of secondary electronic evidence; if the original device itself is produced, no certificate is needed. The BSA, 2023 has retained and refined this certificate requirement (Section 63).

2. State the general rule on the burden of proof — 'whoever desires any court to give judgment'.

   The burden of proof lies on the person who would fail if no evidence at all were given on either side (Section 101 old Act / Section 104 BSA). Burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence (Section 102/Section 105 BSA). 'He who asserts must prove.'

3. Distinguish the 'burden of proof' (legal/persuasive) from the 'onus of proof' (evidential burden).

   The legal burden of proof (Section 101) is fixed by the pleadings and never shifts — it lies throughout on the party who must succeed on a fact. The onus/evidential burden shifts from party to party as evidence is led and a prima facie case is made out (Section 102-103). The burden of proof in a criminal case to prove guilt beyond reasonable doubt always rests on the prosecution and never shifts.

4. On whom does the burden lie to prove a fact especially within one's knowledge (Section 106)?

   When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him (Section 106 old Act / Section 109 BSA). This is an exception assisting the prosecution where facts are peculiarly within the accused's knowledge (e.g., explanation of recent possession of stolen property, last-seen-together circumstances).

5. What is the presumption regarding a person not heard of for seven years (Sections 107-108)?

   Section 107 (old Act): when a person was alive within 30 years, the burden of proving he is dead is on the person asserting death (presumption of continuance of life). Section 108: when a person has not been heard of for SEVEN YEARS by those who would naturally have heard from him, the burden of proving he is alive shifts to the person asserting he is alive (presumption of death). The Act does NOT presume the date/time of death.

6. Explain the conclusive presumption of legitimacy of a child (Section 112 old Act / Section 116 BSA).

   The fact that a person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution (the mother remaining unmarried), is CONCLUSIVE PROOF that he is the legitimate son of that man, UNLESS it is shown that the parties had no access to each other at any time when he could have been begotten. Non-access is the only way to rebut it; DNA evidence may now be ordered in appropriate cases but the bar is high.

7. What is the presumption as to the genuineness of documents thirty years old (Section 90 old Act)?

   Where a document purporting to be 30 years old is produced from proper custody, the court may presume that the signature and every other part of it which purports to be in a person's handwriting is in that person's handwriting, and that it was duly executed and attested. (Section 90 old Act; the BSA reduces this period to 30 years and addresses electronic records too.)

8. What special presumption applies in prosecutions for rape regarding absence of consent (Section 114A old Act / Section 120 BSA)?

   In a prosecution for rape under specified aggravated circumstances (e.g., custodial rape, gang rape), where sexual intercourse is proved and the victim states in her evidence that she did not consent, the court SHALL PRESUME that she did not consent (a 'shall presume' presumption shifting the burden to the accused to prove consent).

9. What presumption arises regarding abetment of suicide by a married woman within seven years (Section 113A) and dowry death (Section 113B)?

   Section 113A: where a married woman commits suicide within 7 years of marriage and it is shown her husband/relatives subjected her to cruelty, the court MAY presume abetment of suicide. Section 113B: where it is shown that soon before death a woman was subjected to cruelty/harassment for dowry, in a 'dowry death' prosecution the court SHALL presume the accused caused the dowry death (mandatory presumption).

10. Who is competent to testify as a witness (Section 118 old Act / Section 124 BSA)?

    All persons are competent to testify UNLESS the court considers that they are prevented from understanding the questions put to them, or from giving rational answers, by tender years, extreme old age, disease (of body or mind) or any other cause of the same kind. A lunatic is competent unless his lunacy prevents understanding. Thus competency is the rule and incompetency the exception.

11. Is a child witness competent, and what precaution must the court take?

    Yes — there is no fixed minimum age; a child is competent if able to understand questions and give rational answers (a 'voire dire' test may be conducted). However, because children are susceptible to tutoring, courts treat child testimony with caution and ordinarily look for corroboration before relying on it, though corroboration is a rule of prudence, not law.

12. Explain the privilege protecting communications during marriage (Section 122 old Act / Section 128 BSA).

    A person who is or has been married shall not be compelled to disclose any communication made to him/her during marriage by the spouse, nor be permitted to disclose it without the consent of the spouse (or their representative). Exceptions: suits between the married persons, and proceedings where one spouse is prosecuted for a crime committed against the other. The privilege protects the communication, not facts/acts observed.

13. What is the privilege relating to professional communications with a legal adviser (Sections 126-129 old Act)?

    No barrister, attorney, pleader or vakil may, without the client's express consent, disclose any communication made to him in the course and for the purpose of his employment, the contents of documents he became acquainted with, or advice given (Section 126). Exceptions: communications made in furtherance of an illegal purpose, and facts observed showing a crime/fraud was committed since employment. The privilege belongs to the client and continues after employment ends.

14. What protection do Sections 123-124 (old Act) give to affairs of State and official communications?

    Section 123: no one shall give evidence derived from unpublished official records relating to affairs of State except with the permission of the head of the department concerned (privilege for State documents). Section 124: a public officer cannot be compelled to disclose official communications made to him in official confidence when he considers public interest would suffer. The court ultimately balances public interest in disclosure against confidentiality.

15. What is the order of examination of a witness and the three stages?

    The order is: (1) Examination-in-chief — examination by the party who calls the witness; (2) Cross-examination — examination by the adverse party; and (3) Re-examination — re-examination by the party who called him, after cross-examination (Sections 137-138 old Act / Sections 142-143 BSA). The examination must relate to relevant facts; re-examination is directed to explaining matters arising in cross-examination.

16. When are leading questions permitted and when prohibited (Sections 141-143 old Act)?

    A leading question is one suggesting the answer the questioner wishes to receive (Section 141). Leading questions must NOT be asked in examination-in-chief or re-examination if objected to (except on introductory/undisputed matters or those already sufficiently proved — court's permission). Leading questions MAY be asked in cross-examination (Section 143).

17. What is the rule about hostile witnesses and cross-examination of one's own witness (Section 154 old Act)?

    The court may, in its discretion, permit the party who calls a witness to put any questions to him which might be put in cross-examination by the adverse party (i.e., declare the witness 'hostile' and cross-examine him). The evidence of a hostile witness is not automatically washed away; the court may rely on those parts of his testimony that are corroborated and trustworthy.

18. How may the credit of a witness be impeached (Section 155 old Act / Section 158 BSA)?

    The credit of a witness may be impeached by: (1) evidence of persons who testify they believe him unworthy of credit; (2) proof that the witness has been bribed, has accepted an offer of a bribe, or received corrupt inducement; and (3) proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. (The old clause permitting impeachment of a rape victim's character by general immoral character has been omitted.)

19. Who is an 'accomplice' and is an accomplice a competent witness (Section 133 old Act / Section 138 BSA)?

    An accomplice is a guilty associate or partner in the commission of the crime (e.g., a co-perpetrator, abettor, or an approver who turns prosecution witness). An accomplice is a COMPETENT witness against an accused, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice (Section 133).

20. How do Section 133 and the illustration to Section 114(b) operate together regarding accomplice corroboration?

    Section 133 says a conviction on uncorroborated accomplice testimony is legal, while Section 114, illustration (b) says the court MAY presume that an accomplice is unworthy of credit unless corroborated in material particulars. Read together, the rule of PRUDENCE (judge-made, now well settled) requires that accomplice evidence be corroborated in material particulars connecting the accused with the crime before it is acted upon, even though Section 133 permits conviction without it.

21. What kind of corroboration is required for accomplice evidence to be safely acted upon?

    The corroboration must be (1) independent of the accomplice; (2) in material particulars; and (3) such as to connect or tend to connect the accused with the crime (implicate the accused) — though not necessarily confirming every detail. One accomplice generally cannot corroborate another (per Rameshwar v. State of Rajasthan and the rule of prudence).

22. What is the significance and structure of the Bharatiya Sakshya Adhiniyam, 2023, and what did it replace?

    The Bharatiya Sakshya Adhiniyam (BSA), 2023, came into force on 1 July 2024, replacing the Indian Evidence Act, 1872. It contains 170 sections (compared to 167 in the old Act), arranged in chapters covering relevancy of facts, on proof, and production/effect of evidence. It modernises the law, especially regarding electronic and digital records, while largely retaining the substance of the old Act.

23. What are the key changes introduced by the Bharatiya Sakshya Adhiniyam, 2023 compared to the Indian Evidence Act, 1872?

    Key changes: (1) electronic/digital records are expressly recognised as 'documents' and given primary-evidence status; (2) expanded and clarified provisions for admissibility of electronic records with a structured certificate (Section 63); (3) inclusion of electronic records within secondary evidence; (4) joint trials clarified to include trials where an accused absconds/proclaimed offender; (5) reorganisation/renumbering of sections; and (6) removal of obsolete provisions, while the core principles (relevancy, admissions, confessions, burden of proof, estoppel) are retained.

24. Under the BSA, 2023, how are electronic records classified within the definition of 'document' and 'evidence'?

    The BSA expressly includes electronic and digital records (emails, server logs, locational evidence, messages, information stored in semiconductor memory or communication devices) within the definition of 'document'. 'Evidence' includes oral statements (including those given electronically) and documentary evidence including electronic records. This places electronic records on the same footing as documentary evidence for admissibility purposes.

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