Kinds of Evidence under the Bharatiya Sakshya Adhiniyam, 2023: Direct, Circumstantial, Oral, Documentary, Real, Primary, Secondary and Electronic Evidence

Section 2(1)(e) recognises only two categories of evidence, oral and documentary. The other classifications used in practice are analytical, drawn from the structure of the Adhiniyam and from judicial usage, and they overlap freely. A single item may be documentary, secondary, circumstantial and corroborative at the same time. The classifications matter because each carries its own rule about the mode of proof and about the weight the court may attach.

1. Overview

Classification	Basis of the division	Governing provisions
Oral and documentary	The form in which the material is brought before the court	Section 2(1)(e); Sections 54 and 55; Sections 56 to 93
Direct and circumstantial	Whether the evidence relates to the fact in issue itself or to other facts from which it may be inferred	Section 55; Sections 4 to 14
Primary and secondary	Whether the document itself is produced, or evidence of its contents is given otherwise	Sections 57 to 60
Real or material	Physical objects produced for the inspection of the court	Second proviso to Section 55
Electronic and digital	The medium in which the record exists	Sections 2(1)(d) and (e); Sections 57, 61 and 63 and the Schedule
Hearsay and original	Whether the witness perceived the fact himself or repeats an account given by another	Section 55; the exceptions in Sections 4, 15 to 32 and 39 to 45
Substantive and corroborative	Whether the evidence can by itself sustain a finding	Sections 160 and 161; Section 39
Judicial and extra-judicial	Whether the statement is made before the court or outside it	Section 2(1)(e); Sections 23 and 26

2. Oral Evidence

Sections 54 and 55, BSA

Section 54. All facts, except the contents of documents or electronic records, may be proved by oral evidence.

Section 55. Oral evidence shall, in all cases whatever, be direct; that is to say — if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; and if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.

2.1 The two provisos

Expert opinion in a treatise. The opinion of an expert expressed in any treatise commonly offered for sale, and the grounds on which it is held, may be proved by production of the treatise if the author is dead, cannot be found, has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable.
Production of material things. If oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it thinks fit, require the production of that material thing for its inspection. This proviso is the route by which real or material evidence enters the record.

2.2 The rule against hearsay

Section 55 gives effect to the rule against hearsay by requiring that oral evidence be direct in all cases. A witness may depose only to what he himself perceived. An account of what a third person said, tendered to prove the truth of what was said, is excluded, for four reasons: the maker was not on oath, he was not subject to cross-examination, his demeanour cannot be observed, and the account loses reliability at each remove.

📖 Subramaniam v. Public Prosecutor, (1956) 1 WLR 965 (PC)

Held: Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that it was made.

Ratio: The classic formulation of the boundary of the hearsay rule, applied consistently by Indian courts.

Exception to the hearsay rule	Provision
Facts forming part of the same transaction (res gestae)	Section 4
Admissions and confessions	Sections 15 to 25
Dying declarations and other statements of persons who cannot be called as witnesses	Section 26
Evidence given in a former judicial proceeding	Section 27
Entries in books of account, in public records and in registers; statements in maps, charts and plans; statements in Acts and notifications	Sections 28 to 32
Opinions of experts and of persons having special means of knowledge	Sections 39 to 45

3. Documentary Evidence

Section 2(1)(d) and Section 56, BSA

'Document' means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter, and includes electronic and digital records.

Section 56. The contents of documents may be proved either by primary or by secondary evidence.

Chapter V, comprising Sections 56 to 93, is the largest block in Part III and divides into three parts: proof of contents in Sections 56 to 73, public documents in Sections 74 to 77, and presumptions as to documents in Sections 78 to 93.

⚠ Proof of a document and proof of its truth

Proving a document establishes what it says and that it was executed by the person alleged. It does not establish that what it says is true. A recital in a deed or a statement in a letter is proved as a statement once the document is proved, but its truth must be established separately, unless a provision such as Sections 28 to 32 makes the statement itself relevant.

4. Primary Evidence

Section 57, BSA

Primary evidence means the document itself produced for the inspection of the Court.

Explanation 1. — Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2. — Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original, they are not primary evidence of the contents of the original.

Explanation 3. — An electronic or digital record created or stored, and such storage occurring simultaneously or sequentially in multiple files, each such file is primary evidence.

Explanation 4. — Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.

Explanation 5. — Where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.

Explanation 6. — Where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.

Explanations 1 and 2 are carried forward from Section 62 of the Indian Evidence Act. Explanations 3 to 6 are new, and they are the most significant single change made by the Adhiniyam to the law of documentary evidence. Their combined effect is that a great deal of electronic material which under the earlier Act could be tendered only as secondary evidence, subject to the certificate requirement, is now primary evidence to which that requirement does not apply.

5. Secondary Evidence

Section 58, BSA

Secondary evidence includes —

(i) certified copies given under the provisions hereinafter contained;

(ii) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;

(iii) copies made from or compared with the original;

(iv) counterparts of documents as against the parties who did not execute them;

(v) oral accounts of the contents of a document given by some person who has himself seen it;

(vi) oral admissions;

(vii) written admissions;

(viii) evidence of a person who has examined a document, the original of which consists of numerous accounts or other documents which cannot conveniently be examined in Court, and who is skilled in the examination of such documents.

Clauses (vi), (vii) and (viii) are the expansion introduced by the Adhiniyam. Under the Indian Evidence Act those routes existed but had to be assembled from Section 63 read with Section 65 and the provisions on admissions.

Sections 59 and 60, BSA

Section 59. Documents shall be proved by primary evidence except in the cases hereinafter mentioned.

Section 60. Secondary evidence may be given of the existence, condition or contents of a document in the cases enumerated, including — where the original is shown or appears to be in the possession or power of the person against whom it is sought to be proved, or of a person out of reach of or not subject to the process of the Court, or of a person legally bound to produce it, and such person does not produce it after notice; where its existence, condition or contents have been proved to be admitted in writing by the person against whom it is proved or his representative in interest; where the original has been destroyed or lost, or the party offering evidence of its contents cannot for any other reason not arising from his own default or neglect produce it in reasonable time; where the original is of such a nature as not to be easily movable; where the original is a public document; where the original is a document of which a certified copy is permitted by law to be given in evidence; and where the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court.

📖 J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730

Held: Secondary evidence is evidence which may be given in the absence of better evidence which the law requires to be given first, when a proper explanation of its absence has been given. Before secondary evidence of the contents of a document is admitted, the non-production of the original must be accounted for in a manner that brings it within one of the cases provided for in the statute. A party seeking to produce a photocopy must lay the foundational facts.

Ratio: Secondary evidence is not admissible merely because the original is not produced; the statutory ground must be established first.

	Primary evidence	Secondary evidence
Provision	Section 57	Section 58
Nature	The document itself	Evidence of the contents of the document otherwise than by production of it
Admissibility	Admissible as of right; no foundation need be laid	Admissible only in the cases enumerated in Section 60, and only after the foundation is laid
Notice	Not required	Notice to produce is ordinarily required where the original is with the opposite party
Weight	The best evidence of the contents	Lower; the court is entitled to view it with greater caution
Electronic records	Governed by the Explanations to Section 57	Governed by Section 63 and the Schedule

6. Real or Material Evidence

Real evidence consists of physical objects produced for the inspection of the court — a weapon, a bloodstained garment, a damaged vehicle, an injury on the person of a witness, or the site of an occurrence. It falls within neither limb of Section 2(1)(e), and is brought before the court under the second proviso to Section 55, which permits the court to require the production of a material thing other than a document for its inspection.

Feature	Position
Statutory route	Second proviso to Section 55; the court may require production if oral evidence refers to the existence or condition of the thing
Identification	The object must be connected to the case by oral evidence — a witness must depose to its seizure, its custody and its identity
Chain of custody	Not expressly provided for in the Adhiniyam. The Standing Committee on Home Affairs noted the absence of any provision securing the chain of custody of material and digital records collected during investigation
Weight	High where identity and custody are established, because the object speaks for itself; worthless where the chain is broken
Related provisions	Section 39 (expert opinion on the object); Sections 105 and 176(3), BNSS, 2023 (audio-video recording of search and seizure, and forensic examination)

7. Direct and Circumstantial Evidence

	Direct evidence	Circumstantial evidence
Meaning	Evidence of the fact in issue itself, given by a person who perceived it	Evidence of other facts from which the fact in issue may be inferred
Example	An eyewitness who deposes that he saw the accused inflict the fatal blow	Motive; preparation; last seen together; recovery of the weapon; medical evidence; conduct after the incident; absence of explanation
Statutory basis	Section 55, which requires oral evidence to be direct	Sections 4 to 14, which make the surrounding facts relevant
Requirement	Credibility of the witness	Each circumstance must be fully established, and the circumstances together must form a complete chain excluding every reasonable hypothesis of innocence
Relative weight	Not inherently superior; a single unreliable eyewitness proves nothing	Not inherently inferior; a complete chain may be more compelling than disputed direct testimony

⚠ Two senses of 'direct'

The expression is used in two different senses. In Section 55 it means evidence of what the witness himself perceived, as opposed to hearsay. In the classification above it means evidence of the fact in issue itself, as opposed to circumstantial evidence. Testimony may be direct in the first sense and circumstantial in the second, as where a witness deposes that he personally saw the accused purchase poison.

📖 Hanumant v. State of Madhya Pradesh, AIR 1952 SC 343

Held: In cases depending on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn should be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and tendency, and should exclude every hypothesis but the one proposed to be proved. There must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with innocence.

Ratio: The foundational statement of the standard applicable to circumstantial evidence in Indian law.

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

Held: The Court restated the requirements in five conditions: the circumstances must be fully established, and the facts must be established and not merely 'may be' established; the facts so established must be consistent only with the hypothesis of guilt; the circumstances 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 not to leave any reasonable ground for a conclusion consistent with innocence.

Ratio: The governing authority on circumstantial evidence, and the case in which the distinction between 'may be proved' and 'must be proved' was emphasised.

📖 Bodh Raj v. State of Jammu and Kashmir, (2002) 8 SCC 45

Held: The last-seen-together circumstance comes into play where the time gap between the point when the accused and the deceased were last seen alive and the point when the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. The circumstance is a link in the chain and is not by itself conclusive.

Ratio: A single circumstance does not discharge the burden; it must form part of a complete chain.

8. Electronic and Digital Evidence

Provision	Effect
Section 2(1)(d)	Electronic and digital records are within the definition of 'document', with Illustrations covering e-mails, server logs, files on computers, laptops and smartphones, messages, website content, locational evidence and voice mail messages
Section 2(1)(e)	Electronic or digital records are documentary evidence; statements given electronically are oral evidence
Section 2(2)	Definitions in the Information Technology Act, 2000 apply, including 'electronic record' in Section 2(1)(t) of that Act
Section 57, Explanations 3 to 6	Specified electronic outputs are primary evidence — simultaneous or sequential storage in multiple files, records produced from proper custody, simultaneously stored and transmitted video recordings, and automated storage including temporary files
Section 61	Admissibility shall not be denied merely because a record is electronic; such a record shall, subject to Section 63, have the same legal effect, validity and enforceability as any other document
Section 62	Special provisions as to evidence relating to electronic records
Section 63 and the Schedule	Conditions and certificate for admission as secondary evidence — Part A signed by the person in charge of the device, disclosing the hash value; Part B signed by an expert
Section 39(2)	Opinion of an Examiner of Electronic Evidence under Section 79A of the Information Technology Act, 2000
Section 90	Presumption as to electronic messages, carried forward from Section 88A of the Indian Evidence Act; the presumption as to telegraphic messages in Section 88 is omitted
Section 93	Presumption as to electronic records five years old

A hash value is a cryptographic digest of a file. Any alteration, however small, produces an entirely different hash, so that its disclosure permits verification at any later stage that the record produced is identical to the record originally seized. Current forensic practice uses algorithms such as SHA-256.

📖 Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473

Held: Electronic records constitute a special class of evidence. Sections 65A and 65B of the Indian Evidence Act together formed a complete code, and compliance with Section 65B(4) was mandatory for the admission of secondary electronic evidence. The maxim generalia specialibus non derogant was applied. State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 was overruled to that extent.

📖 Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1

Held: A three-Judge Bench restored and clarified Anvar P.V. The certificate is mandatory where secondary electronic evidence is relied upon, but is not required where the original device is itself produced by its owner. Where a party is unable to obtain the certificate because the device is in the control of another, the court may compel its production. Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 was held not to be good law and Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 was declared per incuriam.

Position under the BSA: The distinction between a record produced from the device itself and a copy tendered as secondary evidence is now reflected in Sections 57 and 63.

📖 Pune Bar Assn. v. Union of India, 2026 SCC OnLine SC 1297 (decided 22 May 2026)

Held: A three-Judge Bench (Surya Kant, CJI, Joymalya Bagchi and Vipul M. Pancholi, JJ.) upheld the constitutional validity of Section 63(4) and the Schedule. The requirements of hash-value disclosure and expert certification bear a rational nexus with the object of preserving the authenticity and integrity of electronic records. Reading Sections 39(1) and 39(2) harmoniously, the Court held that the expert who signs Part B is not confined to an Examiner of Electronic Evidence notified under Section 79A of the Information Technology Act, 2000; any person possessing special skill in computer science or cyber forensics may sign, subject to the satisfaction of the court on unimpeachable material.

9. Further Classifications

Classification	Meaning	Position under the Adhiniyam
Substantive evidence	Evidence which by itself may sustain a finding of fact	The testimony of a witness in court; a proved document; a dying declaration under Section 26
Corroborative evidence	Evidence which lends support to substantive evidence but cannot found a finding on its own	A former statement used to corroborate under Section 160; expert opinion under Section 39 is ordinarily corroborative
Judicial evidence	Evidence received by the court in the course of the proceeding	Statements made before the court under Section 2(1)(e)
Extra-judicial evidence	A statement made outside the court, receivable only where a provision permits	Extra-judicial confessions under Sections 22 to 24; dying declarations under Section 26
Original evidence	That which a witness gives of his own perception	Required by Section 55
Derivative or unoriginal evidence	That which is derived from another source	Hearsay, excluded save by the exceptions
Expert or scientific evidence	Opinion on a point of foreign law, science, art, handwriting, finger impressions or any other field	Section 39; the residuary words 'any other field' are an addition made by the Adhiniyam

10. Related Topics and Provisions

Topic or provision	Connection
Nature and Meaning of Evidence	The statutory definition of evidence and its relationship with relevancy, admissibility and proof
Proof and Modes of Proof	How each kind of evidence operates to establish a fact
Standard of Proof in Civil and Criminal Cases	The degree of assurance required, and the special standard applicable to circumstantial cases
Relevancy and Admissibility of Evidence — Difference	Why relevant material of a particular kind may still be excluded
Sections 54 to 60, BSA	Oral evidence, and primary and secondary documentary evidence
Sections 61 to 63 and the Schedule, BSA	Electronic and digital records
Sections 78 to 93, BSA	Presumptions as to documents and electronic records
Section 79A, Information Technology Act, 2000	Examiner of Electronic Evidence