Conduct of the Accused as Circumstantial Evidence under Section 6 of the Bharatiya Sakshya Adhiniyam, 2023: Absconding, Concealment, False Explanation and Case Laws

People behave differently after doing something than after not doing it. The law of evidence recognises this without overstating it. Section 6(2) makes the conduct of a party relevant where that conduct influences or is influenced by a fact in issue, and a great deal of circumstantial prosecution rests on what the accused did before and after the occurrence. The provision is guarded by two Explanations that keep conduct separate from statement, and by a body of case law that treats most species of incriminating conduct as weak links requiring support.

1. The Provision

Section 6(2), BSA — Conduct

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Explanation 1. — The word 'conduct' in this section does not include statements, unless those statements accompany and explain acts other than statements; but this Explanation is not to affect the relevancy of statements under any other section of this Adhiniyam.

Explanation 2. — When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.

1.1 The two-way test

Conduct is relevant only where it influences or is influenced by a fact in issue or relevant fact. The test runs in both directions, and it is what confines the provision. Conduct having no connection with the matter in issue does not become relevant merely because it is discreditable.

	Conduct which influences a fact in issue	Conduct which is influenced by a fact in issue
Timing	Ordinarily previous	Ordinarily subsequent
Direction	The conduct operates on the fact in issue and helps to bring it about	The fact in issue operates on the conduct and produces it
Examples	Prior threats; earlier assaults; demands for money or dowry; procuring a false document	Abscondence; concealment of the body or the weapon; a false explanation; tampering with witnesses; sudden affluence

2. Conduct Distinguished from Statement

Explanation 1 is the boundary of the section. Without it, every out-of-court assertion could be tendered as the conduct of its maker, and the rule against hearsay would collapse.

Material	Conduct under Section 6(2)?	Reason
The accused runs on seeing the police	Yes	An act, not a statement
The accused leads the police to a concealed weapon and points it out	Yes	An act; the pointing out is conduct
The accused says 'I have hidden the weapon in the well'	No	A pure statement; admissible only under the proviso to Section 23(2), and then only in part
The accused hands over a bundle saying 'this is what I took from the house'	Yes as to the act; the words admitted because they accompany and explain it	A statement accompanying and explaining an act other than a statement
The victim makes a prompt complaint	Yes, as to the fact and circumstances of the complaint	The making of the complaint is conduct of the person against whom the offence was committed
The victim merely says she was assaulted, without making a complaint	No	The Illustrations state expressly that this is not relevant as conduct, though it may be relevant under Section 26 or as corroboration under Section 160
A letter warning the accused that enquiry was being made, after which he absconds	The abscondence is conduct; the letter is admitted under Explanation 2	A statement made to him which affects his conduct

The closing words of Explanation 1 preserve every other route. A statement excluded as conduct may still be relevant as an admission under Sections 15 to 21, as a confession under Sections 22 to 24, as part of the transaction under Section 4, as a dying declaration under Section 26, or as corroboration under Section 160.

3. The Species of Incriminating Conduct

Conduct	Evidentiary value	Principal limitation
Absconding	Relevant; a weak circumstance taken alone	An innocent person may flee from fear of implication or of the police. Mere absence is not abscondence
Concealment or destruction of evidence	Strong, where the accused is shown to have concealed the body, disposed of the weapon or washed bloodstained clothing	Must be connected to the accused personally; concealment by another does not implicate him
Leading to a concealed article	Strong; admissible as conduct independently of the discovery provision	Establishes knowledge of the place, not authorship of the offence
False explanation	An additional link where a fact is especially within the accused's knowledge	Never the sole basis of conviction; it supplements a chain and cannot repair one
Possession of the proceeds	Strong where recent and unexplained	The strength diminishes as the interval lengthens, and the possession must be shown to be conscious
Sudden and unexplained affluence	A supporting circumstance where the offence was one of gain	Requires proof both of the prior condition and of the change
Tampering with witnesses or evidence	Strong, as conduct in reference to the proceeding itself	Must be brought home to the accused and not merely to a well-wisher
Refusal to furnish a specimen or to join an identification parade	Permits an adverse inference	The refusal must be established, and any explanation offered must be considered
Non-appearance and evasion of process	Conduct in reference to the proceeding	Explicable by illness, ignorance of the process or other innocent causes
Fabrication of an alibi or of a document	Strong; conduct in reference to the proceeding	The falsity must be established, not merely the failure of the plea

4. Absconding

Illustration (i) to Section 6 provides that where A is accused of a crime, the facts that after its commission he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant. Illustration (h) supplements it: where A absconds after receiving a letter warning him that enquiry was being made for the criminal, both the abscondence and the contents of the letter are relevant, the latter by force of Explanation 2.

📖 Matru alias Girish Chandra v. State of Uttar Pradesh, (1971) 2 SCC 75

Held: Mere absconding by itself does not necessarily lead to a firm conclusion of a guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime, such is the instinct of self-preservation. The act of absconding is no doubt relevant, but its value depends on the circumstances of each case, and it is ordinarily a very small item in the evidence for sustaining a conviction.

Ratio: The leading statement. Abscondence is relevant conduct of limited weight, and it cannot supply the want of proof.

Proposition	Effect
Abscondence is relevant conduct under Section 6(2)	Evidence of it may be given
Abscondence is not conclusive of guilt	A link in a chain, and a weak one taken alone
Mere absence is not abscondence	The prosecution must show that the accused concealed himself or evaded arrest, not merely that he was not found at home
An innocent person may abscond	Fear of the police, of false implication, of social consequence, or of violence at the hands of the victim's relatives are all common and innocent explanations
Abscondence cannot complete a broken chain	Where the remaining circumstances do not establish the chain, flight does not close the gap
A reasonable explanation removes its force	The accused may explain his absence, and the explanation must be considered

⚠ Abscondence across the three statutes

Abscondence does three separate jobs under the new laws. It is relevant conduct under Section 6(2) of the Adhiniyam. It triggers the proclamation and attachment procedure under Section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023. And the Explanation to Section 24 of the Adhiniyam provides that a trial of more persons than one, held in the absence of an accused who has absconded or who has failed to comply with such a proclamation, is deemed to be a joint trial — which is a change from the position under the Indian Evidence Act.

5. Conduct of Leading to Discovery

The most valuable species of conduct in practice is the act of taking the police to a place and pointing out a concealed article. Its importance lies in the fact that it survives even where the accompanying disclosure statement fails the requirements of the proviso to Section 23(2).

📖 A.N. Venkatesh v. State of Karnataka, (2005) 7 SCC 714

Held: Where the accused, pursuant to information given by them, led the police and the witnesses to the place where the dead body was concealed and pointed it out, the conduct of the accused in doing so falls within Section 8 of the Indian Evidence Act, now Section 6 of the Adhiniyam, and is admissible irrespective of whether the statement accompanying it satisfies the requirements of the discovery provision. Even if the information given does not amount to a statement leading to discovery, the conduct of pointing out is relevant as conduct.

Ratio: The act of leading to a concealed object is admissible as conduct independently of the proviso to Section 23(2).

📖 Prakash Chand v. State (Delhi Administration), (1979) 3 SCC 90

Held: There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Indian Evidence Act if it is influenced by any fact in issue or relevant fact, and a statement made to a police officer in the course of an investigation. The evidence of the conduct of the accused in taking the officer to a place and pointing out an article is admissible as conduct; the bar on the use of statements made to the police does not extend to conduct.

Ratio: The statutory bar on police statements does not exclude evidence of conduct.

⚠ What the conduct establishes

The act of pointing out establishes that the accused knew where the article was. It does not establish that he placed it there, still less that he committed the offence. Knowledge of a place of concealment is consistent with having concealed the article, with having seen it concealed, and with having been told of it. The conduct is a link, and the remaining circumstances must connect that knowledge to the offence.

6. False Explanation and Silence

The accused is under no obligation to explain anything, and no adverse inference arises from mere silence in the abstract. Two situations nevertheless give his response evidentiary significance.

Where a fact is especially within his knowledge. Section 109 places the burden of proving such a fact on the person within whose knowledge it lies. Where the prosecution establishes circumstances calling for an explanation which only the accused can give, and none is forthcoming, the circumstances stand unrebutted.
Where the explanation offered is shown to be false. A false answer is not the absence of an explanation; it is itself conduct, and it is relevant under Section 6(2) as conduct influenced by a fact in issue.

📖 Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681

Held: Where an offence such as murder is committed in secrecy inside a house, the initial burden of establishing the case on the prosecution is not as heavy as in a case of an open occurrence. If the accused does not throw any light on facts which are proved to be within his special knowledge, but instead offers a false explanation, that failure becomes an additional link in the chain of circumstances. The Court emphasised that this does not relieve the prosecution of its primary burden.

Ratio: A false or absent explanation supplements a chain that is otherwise substantially complete; it cannot repair one that is broken.

⚠ The order of reasoning matters

A false explanation becomes material only after the prosecution has established circumstances calling for an explanation. A court which begins with the weakness of the defence and reasons backwards to guilt has reversed the burden of proof. The correct sequence is: are the circumstances fully established; do they exclude every reasonable hypothesis of innocence; and only then, does the accused's false or absent explanation strengthen a conclusion already available on the prosecution evidence.

7. Conduct of the Victim

Section 6(2) extends expressly to the conduct of a person an offence against whom is the subject of the proceeding. The victim's conduct is therefore relevant on the same footing as that of a party.

Conduct of the victim	Relevance
A prompt complaint	Illustrations (j) and (k) make the fact of the complaint, the circumstances under which it was made and the terms in which it was made relevant. Promptness supports the account; unexplained delay invites scrutiny
Naming the assailant to the first person encountered	Relevant as conduct, and frequently also under Section 4 as part of the transaction
Distress and physical condition immediately afterwards	Relevant as conduct, and under Section 12 as a state of body or bodily feeling
Conduct inconsistent with the allegation	Relevant to the defence — continued association with the accused, delay without explanation, or a failure to complain when the opportunity existed
Statements without a complaint	Not relevant as conduct, as the Illustrations state expressly, though they may be relevant under Section 26 or as corroboration under Section 160

8. Conduct within the Five Golden Principles

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

Held: The circumstances from which the conclusion of guilt is drawn must be fully established, and the facts must be established and not merely 'may be' established; they must be consistent only with the hypothesis of guilt; they must be of a conclusive nature and tendency; they must exclude every possible hypothesis except the one to be proved; and there must be a chain of evidence so complete as to leave no reasonable ground for a conclusion consistent with innocence.

Application to conduct: Each item of conduct must itself be proved. Abscondence must be established as concealment and not mere absence; concealment must be brought home to the accused; a false explanation must be shown to be false. And the conduct must be consistent only with guilt, which is precisely where abscondence usually fails, since flight is equally consistent with fear.

Condition	Application to conduct
Fully established	The conduct itself must be proved beyond reasonable doubt by admissible evidence
Consistent only with guilt	The point at which most conduct evidence fails. Flight, non-appearance and even concealment often admit of innocent explanations
Conclusive nature and tendency	Conduct that merely raises a question does not have conclusive tendency
Excludes every hypothesis	Conduct rarely achieves this alone; its function is to support the circumstances that do
Complete chain	Conduct is a link. A chain of conduct alone — flight, silence and evasion — is not a chain connecting the accused to the act

9. Related Topics and Provisions

Topic or provision	Connection
Motive, Preparation and Conduct — Section 6	The section-wise treatment of the provision
Circumstantial Evidence — Meaning, Nature and Principles	The framework within which conduct is assessed
Recovery as Circumstantial Evidence	The proviso to Section 23(2), and the conduct route where it fails
Motive in Circumstantial Evidence Cases	The circumstance that supplies the reason supporting the inference
Last Seen Theory	The circumstance of association, which conduct after the occurrence frequently supports
Section 24, BSA	The Explanation deeming a trial held in the absence of an absconding accused to be a joint trial
Section 109, BSA	Burden of proving a fact especially within the knowledge of a person
Section 160, BSA	Corroboration by a former statement, the route for material excluded as conduct
Section 84, BNSS, 2023	Proclamation for a person absconding, and attachment of property