Section 119 BSA | Bharatiya Sakshya Adhiniyam, 2023
Court may presume existence of certain facts.
(1) The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations.
(b) an accomplice is unworthy of credit, unless he is corroborated in material particulars;
(a) a man who is in possession of stolen goods soon, after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
(c) a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;
(d) a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence;
(e) judicial and official acts have been regularly performed;
(f) the common course of business has been followed in particular cases;
(g) evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
(h) if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;
(i) when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.
(2) The Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:—
(i) as to Illustration (a)—a shop-keeper has in his bill a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business;
(ii) as to Illustration (b)—A, a person of the highest character, is tried for causing a man's death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself;
(iii) as to Illustration (b)—a crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other
in such a manner as to render previous concert highly improbable;
(iv) as to Illustration (c)—A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was a young and ignorant person, completely under A's influence;
(v) as to Illustration (d)—it is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course;
(vi) as to Illustration (e)—a judicial act, the regularity of which is in question, was performed under exceptional circumstances;
(vii) as to Illustration (f)—the question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;
(viii) as to Illustration (g)—a man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family;
(ix) as to Illustration (h)—a man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;
(x) as to Illustration (i)—a bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it.
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Section 120 BSA | Bharatiya Sakshya Adhiniyam, 2023
Presumption as to absence of consent in certain prosecution for rape
In a prosecution for rape under sub-section (2) of section 64 of the Bharatiya Nyaya Sanhita, 2023, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such
woman states in her evidence before the Court that she did not Consent, the Court shall presume that she did not consent.
Explanation.—In this section, "sexual intercourse" shall mean any of the acts mentioned in section 63 of the Bharatiya Nyaya Sanhita, 2023.
CHAPTER VIII
ESTOPPEL
Section 121 BSA | Bharatiya Sakshya Adhiniyam, 2023
Estoppel
When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, 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.
A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title.
He must not be allowed to prove his want of title.
Section 122 BSA | Bharatiya Sakshya Adhiniyam, 2023
Estoppel of tenant and of licensee of person in possession.
No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy or any time thereafter, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given.
Section 123 BSA | Bharatiya Sakshya Adhiniyam, 2023
Estoppel of acceptor of bill of exchange, bailee or licensee
No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or licence commenced, authority to make such bailment or grant such licence.
Explanation 1.—The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn.
Explanation 2.—If a bailee delivers the goods bailed to a person other than the bailor, he may prove that such person had a right to them as against the bailor.
CHAPTER IX OF WITNESSES
Section 124 BSA | Bharatiya Sakshya Adhiniyam, 2023
Who may testify
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, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Explanation.—A person of unsound mind is not incompetent to testify, unless he is prevented by his unsoundness of mind from understanding the questions put to him and giving rational answers to them.
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Section 125 BSA | Bharatiya Sakshya Adhiniyam, 2023
Witness unable to communicate verbally
A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court and evidence so given shall be deemed to be oral evidence:
Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.
Section 126 BSA | Bharatiya Sakshya Adhiniyam, 2023
Competency of husband and wife as witnesses in certain cases.
(1) In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses.
(2) In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.
Section 127 BSA | Bharatiya Sakshya Adhiniyam, 2023
Judges and Magistrates.
No Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any question as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting.
Illustrations.
(a) A, on his trial before the Court of Session, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer questions as to this, except upon the special order of a superior Court.
(b) A is accused before the Court of Session of having given false evidence before B, a Magistrate. B cannot be asked what A said, except upon the special order of the superior Court.
(c) A is accused before the Court of Session of attempting to murder a police officer whilst on his trial before B, a Sessions Judge. B may be examined as to what occurred.
Section 128 BSA | Bharatiya Sakshya Adhiniyam, 2023
Communications during marriage.
No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.
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