How Evidence Is Recorded

In one line

The Code says, court by court, who writes the evidence down, in what form, in which language, what is read back to the witness, and what the accused is entitled to have interpreted for him.

In exam wording: sections 307 to 318 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provide for the language of Courts, for evidence to be taken in the presence of the accused, for the mode of recording evidence in summons cases, warrant cases and Sessions trials, for the language of the record, for reading it over to the witness, for interpretation, for remarks on demeanour, for the record of the examination of the accused, and for the High Court's rules.

Why the law has this at all

Because an appeal is heard on paper.

The judge who saw the witness does not decide the appeal. What the appellate court has is the record, and if the record is inaccurate, incomplete, or in a language nobody involved understood, the appeal is decided on a fiction. So the Code is fussy about the record in a way that looks bureaucratic and is not: it says who writes it, requires it to be read over to the witness so he can correct it, requires interpretation where a language barrier exists, and requires it to be signed.

The second idea in the Chapter is older and larger. Evidence is taken in the presence of the accused. A man is not convicted on what was said behind his back.

Some words this chapter uses

A memorandum of the substance is a summary, not a verbatim record. It is the summons case form under section 309.

Taken down in sections 310 and 311 means recorded as it is given, in narrative or in question and answer form.

Demeanour is how a witness behaved while giving evidence: whether he hesitated, was evasive, was distressed.

Formal proof is proof of a document's genuineness where its contents are not really disputed.

Sections 307 and 308: language, and presence

Section 307. The State Government may determine what shall be the language of each Court within the State, other than the High Court.

Section 308, the presence rule. Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, where his personal attendance is dispensed with, in the presence of his advocate, including through audio-video electronic means at the designated place notified by the State Government.

The proviso, and it is new. Where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence is to be recorded, the Court may take appropriate measures to ensure that she is not confronted by the accused, while at the same time ensuring the right of cross-examination of the accused.