Manjare Hassin Raad (191100047) 1

The Evidence Act, 1872

Law on Evidence (I)
LAW 345
Mid Term Examination
Part: A (Analytical Question)
1. Discuss the applicability and non-applicability of the Evidence Law.

Answer:

The Evidence Act, 1872 is mainly procedural law as it has some substantial parts like doctrine of
estoppel. The applicability and non-applicability of the Evidence Act, 1872 are prescribed u/s 1
and 3 of the Act which are given below:

 Applicability of the Evidence Act, 1872:

1. Bangladesh: U/s 1 of the Evidence Act, the Evidence Act is applicable to the whole of
Bangladesh.
2. Judicial Proceedings: U/s 1 of the Evidence Act, the Evidence Act is applicable to all judicial
proceedings.
3. Judges and Magistrates: Section 3 of the Evidence Act particularly mentions the Courts,
namely, Judges, e.g. Session Court, Magistrates, e.g. Magistrate Court and all persons legally
authorized to take evidence. A Court is a permanent judicial body which is constituted for
the purpose of administration of justice. U/s 2(8) of the Code of Civil Procedure, 1908, the
presiding officer of a Court is called judge. A magistrate is a person who carries the role of a
judge in Magistrate Courts who deals with criminal matters. So, section 3 of the Evidence
Act gives the power to the judges and magistrates to examine evidences for the purpose of
giving the verdict of a suit/case.
Manjare Hassin Raad (191100047) 2

 Non-applicability of the Evidence Act, 1872:

1. Military Proceedings: U/s 1 of the Act, the Evidence Act is not applicable to any Courts
martial as per the Army Act, 1952, The Air Force Act, 1953 and The Naval Discipline Ordinance,
1961.

2. Affidavits: It means written oath/affirmation by a person before the Magistrate. According to

section 1 of the Act, the Evidence Act is not applicable to affidavits. So, affidavits per se cannot
become an evidence in any suit/case. But it can become evidence by the consent of the parties
or approved by the provision of any law.

3. Arbitration: Arbitration is a form of ‘Alternative Dispute Resolution’ (ADR) where the parties
select one or more neutral person, known as arbitrator, for solving any dispute outside the
Courts’ jurisdiction. Both u/s 1 and 3 of the Act, the Evidence Act, 1872 is not applicable to
arbitration.

2. Discuss the Historical Background and object of the Evidence Law.

Answer:

 Concept of Evidence:

Origin: The word ‘evidence’ is originated from the Latin word ‘evidentia’ which means to prove
any fact by legal resources.

Meaning: In simple sense, evidence means the proof or disproof of any particular fact. So,
evidence does not mean any fact; rather it means the proof or disproof of any fact through
legal resources.

Juristic Opinion: Professor Salmond defines evidence as any fact or statement which has the
power to prove.
Manjare Hassin Raad (191100047) 3

 Historical Background of Evidence Law:

The Evidence Law was evolved into three different periods in Indian Sub-continent, namely,

1. The ancient Hindu period;

2. The ancient Muslim period; and
3. The British period

1. The Ancient Hindu Period: The source of evidence in the ancient Hindu period was Hindu
Dharmashastras. According to Hindu Dharmashastras, the purpose of any trial is to
discover the truth. Vasista recognisewd three type of evidence, namely, Lekhya
(documentary evidence), Sakshi (witnesses), and Dakhal (possession). Besides, trial by
ordeal was also present in this period. Trial by ordeal was based on religion and faith in God
to determine the guilt of a person in ancient Hindu society, e.g. ordeal by fire, water, poison
etc.
2. The ancient Muslim Period: The source of evidence in the ancient Muslim period was Al-
Quran and Hadith. Evidence could be given before the Muslim Courts through witnesses,
documents. And, trial by ordeal was strictly forbidden in this period. According to Sir Abdul
Rahim, the Muslim era deals with oral and documentary evidence. But hearsay evidence
was not developed in this period.
3. The British Period: The statutory form of Evidence law was developed in the British Period.
In the presidency towns of Calcutta, Bombay and Madras, the English evidence rules were
followed. Outside these presidency towns, there were no fixed rules of evidence, only
customary laws were followed. In 1835, the first Act on Evidence was passed by the British
Government but it was unsuitable in Indian Sub-continent culture. In 1868, Sir Henry
Summer Maine, the law member of the Governor-General Council in that time made a draft
named Indian Evidence Act but it was also unsuitable. Then, a fresh bill was made by Sir
Manjare Hassin Raad (191100047) 4

James Stephen in 1871 which was approved and finally, it was passed as the Indian Evidence
Act which came into force on 1st September, 1872. It was the first Act enacted in 1872.

3. Define Fact and its classification.

Answer:

 Fact:

Generally, fact means an existing thing, i.e. the events which have been happened. But under
Evidence Act, the meaning of fact is not limited; rather it is exhaustive because of inclusion of
both physical and mental matters.

 Classification of Fact:

Section 3 of the Evidence Act adopts the classification of fact from Bentham’s classification of
fact. Bentham classifies the fact into two ways, namely,

a. Physical Fact and

b. Psychological Fact

a. Physical Fact:

According to section 3 of the Act, all facts which are capable of being by the physical/bodily
senses are called physical fact. It is also known as tangible or external or concrete fact. Physical
fact can be proved by direct or circumstantial evidence. According to Bentham,

“Physical fact can be perceived by the five senses of human beings.”

b. Psychological Fact:

According to section 3 of the Act, any mental condition of a conscious person is called
psychological fact. It is also known as intangible or internal or abstract fact. Physical fact cannot
be proved by direct evidence except confession. Generally, psychological fact is proved by
circumstantial evidence. According to Bentham,
Manjare Hassin Raad (191100047) 5

“Psychological fact can be perceived through human’s consciousness and mental process.”

 Identification of Physical and Psychological Fact:

Rahim, with premeditation and guilty intention, kills Samir. Here, killing Samir is a physical fact
and premeditation and guilty intention are psychological facts. And these facts must be proved
by providing direct and circumstantial evidence along with other types of evidence if necessary.

4. On which matters, evidence is given before the Court?

Answer:

U/s 5 of the Evidence Act, evidence may be given based on the existence and non-existence of
fact in issue and relevant fact in any suit or proceeding. So, the relationship between fact in
issue and relevant fact is known as relevancy of fact.

 Fact is issue:

The concept of ‘fact in issue’ is originated from the Latin phrase ‘factum probandum’ which
means disputed or principal fact. Fact in issue is also known as question or questions of fact.
According to section 3 of the Act, the fact that it is accused by one party but denied by the
other party is called a fact in issue. In other words, the controversial fact is the fact in issue.

 Relevant Fact:

The concept of ‘relevant fact’ is originated from the Latin phrase ‘factum probans’ which means
evidentiary fact. The meaning of the word ‘relevant’ is three-fold, i.e. connected, dependable
and admissible. According to section 3 of the Evidence Act, a fact is said to be relevant if it is
connected to the provisions of the Evidence Act, 1872. In other words, the fact which is
connected with the fact in issue is called relevant fact. So, relevant facts must be connected to
the fact in issue; otherwise it shall not be relevant fact. According to Sir James Stephen,

“Relevancy means connection of events as to cause and event.”

Manjare Hassin Raad (191100047) 6

There are two types of relevancy, namely logical relevancy, i.e. facts which are logically relevant
and legal relevancy, i.e. facts which are legally relevancy.

 Identification of fact in issue and relevant fact:

Arif is convicted on Rahim’s murder but Arif denies such conviction. Sharif saw Arif with Rahim
on the day of the murder. Now, whether Arif has committed murder or not is a fact in issue.
And the fact that Sharif saw Arif with Rahim on the day of the murder is a relevant fact.

5. Differentiate between fact in issue and relevant fact.

Answer:

 Differences between fact in issue and relevant fact:

1. Origins: The concept of ‘fact in issue’ is originated from the Latin phrase ‘factum
probandum’ which means disputed or principal fact whereas the concept of ‘relevant fact’ is
originated from the Latin phrase ‘factum probans’ which means evidentiary fact.

2. Meaning: Fact in issue generally means controversial fact whereas relevant fact generally
means connected and admissible fact.

3. Statutory Provisions: According to section 3 of the Evidence Act, the fact that it is accused by
one party but denied by the other party is called a fact in issue and a fact is said to be relevant if
it is connected to the provisions of the Evidence Ac, 1872.

4. Dependency: Fact in issue depends on the cause of action of any fact whereas relevant fact
mainly depends on fact in issue and the statutory provisions of the Evidence Act, 1872.

5. Right or Liability: Fact in issue is an important element of a right or liability whereas relevant
fact is not a necessary element of a right or liability.

6. Illustration: For example, Arif is convicted on Rahim’s murder but Arif denies such conviction.
Sharif saw Arif with Rahim on the day of the murder. Now, whether Arif has committed murder
Manjare Hassin Raad (191100047) 7

or not is a fact in issue. And the fact that Sharif saw Arif with Rahim on the day of the murder is
a relevant fact.

6. Discuss logical relevancy and legal relevancy.

Answer:

 Relevant Fact:

The meaning of the word ‘relevant’ is three-fold, i.e. connected, dependable and admissible.
The concept of ‘relevant fact’ is originated from the Latin phrase ‘factum probans’ which means
evidentiary fact. According to section 3 of the Evidence Act, a fact is said to be relevant if it is
connected to the provisions of the Evidence Act, 1872. In other words, the fact which is
connected with the fact in issue is called relevant fact. So, relevant facts must be connected to
the fact in issue; otherwise it shall not be relevant fact. According to Sir James Stephen,

“Relevancy means connection of events as to cause and event.”

There are two types of relevancy, namely logical relevancy and legal relevancy. Section 5 to 55
of the Evidence Act talks about the relevancy of fact.

 Logical Relevancy:

Facts which are logically relevant are said to be logical relevancy. But they are not probable.
The statutory provisions of logical relevancy are given below:

1. Confession u/s 24-30 of the Evidence Act;

2. Exclusion of oral evidence by documentary evidence u/s 91-99 of the Evidence Act;
3. Estoppel u/s 115-117 of the Evidence Act;
4. Communication during marriage u/s 122 of the Evidence Act;
5. Confidential Communication u/s 129 of the Evidence Act
Manjare Hassin Raad (191100047) 8

For example, the husband said his wife that he had committed a murder. If the wife gives
evidence about his confession of committing the murder, then it is not admissible as evidence
u/s 122 of the Act because the confession is given in their marital life and so, it is not logically
relevant.

 Legal Relevancy:

Facts which are legally relevant are said to be legally relevant. They are probable. Section 5 to
55 of the Evidence Act talks about the relevancy of fact. For example, A is accused of B’s
murder for giving poison to B for inheriting property. Here the motive of inheriting property is
relevant u/s 8 of the Evidence Act.

7. Discuss the differences between logical relevancy and admissibility

of any fact.

Answer:

In Ram Bihari V State of Bihar case, it was held that relevance and admissibility are synonyms
to each other but their legal implications are different from each other. So, from this judicial
decision, it is proved that there have some differences between logical relevancy and
admissibility of fact.

 Differences between logical relevancy and admissibility of any fact:

1. Meaning and Definition:

The meaning of the word ‘relevant’ is three-fold, i.e. connected, dependable and admissible.
U/s 5 of the Evidence Act, evidence may be given based on the existence and non-existence of
fact in issue and relevant fact in any suit or proceeding. So, the relationship between fact in
issue and relevant fact is known as relevancy of fact. There are two types of relevancy, namely
logical relevancy and legal relevancy. Legal relevancy is known as admissibility of any fact. Facts
which are logically relevant are said to be logical relevancy whereas facts which are legally
relevant are said to be admissible of any fact.
Manjare Hassin Raad (191100047) 9

The term ‘admissibility’ means the state or quality of being admissible or permissible and ‘fact’
means an existing thing. In legal sense, ‘admissibility of fact’ means facts which are admissible
before the Court of law is called admissibility of fact.

2. Subject-matter:

Logical relevancy is established on human rational choice and experience whereas admissibility
of fact is established on law, not on human rational choice and experience.

3. Statutory Provision:

The statutory provisions of logical relevancy are given below:

1. Confession u/s 24-30 of the Evidence Act;

2. Exclusion of oral evidence by documentary evidence u/s 91-99 of the Evidence Act;
3. Estoppel u/s 115-117 of the Evidence Act;
4. Communication during marriage u/s 122 of the Evidence Act;
5. Confidential Communication u/s 129 of the Evidence Act

Section 5 to 55 of the Evidence Act talks about the relevancy of fact which are legally relevant
and admissible. Furthermore, u/s 136 of the Evidence Act, the judge has the power to decide
the question of admissibility of evidence.

3. Probability:

Logical relevancy is not probable whereas legal relevancy or admissibility of any fact is probable
in the Evidence Act, 1872.

4. Scope:

Logical relevancy is wider than legal relevancy. So, all legal relevancy are admissible but all
logical relevancy are not admissible. Thus, a confession made to a police officer is logically
relevant, but it is not legally relevant as per section 25 of the Act, i.e. it cannot be used as
evidence against the person making it.

5. Nature:
Manjare Hassin Raad (191100047) 10

Logical relevancy is genus and admissibility of fact is species.

6. Illustrations:

The husband said his wife that he had committed a murder. If the wife gives evidence about his
confession of committing the murder, then it is not admissible as evidence u/s 122 of the Act
because the confession is given in their marital life and so, it is not logically relevant. On the
other hand, A is accused of B’s murder for giving poison to B for inheriting property. Here the
motive of inheriting property is legally relevant and admissible u/s 8 of the Evidence Act.

8. Define ‘document’.

Answer:

 Document:

‘Document’ means a written instrument. The definition of document is provided u/s 3 of the
Evidence Act, 1872 and the General Clauses Act, 1897 and section 29 of the Penal Code, 1860
which are similar in nature. So, u/s 3 of the Evidence Act, any letters/figures/marks used for
recording any matter is called document.

 Example:

Any writing, lithography, photograph, map, cartoon/caricature etc. are the suitable examples of
a document for the purpose of the Act.

 Classification:

Document is classified into two types, namely, public and private document.

1. Public Document: U/s 74 of the Act, public documents shall include executive, legislative,
judicial and public records are known as public documents.
Manjare Hassin Raad (191100047) 11

2. Private Document: U/s 75 of the Act, all other documents except public documents are
known as private documents.

9. Are there other types of evidences other than oral or documentary

evidences? /‘The judges mainly give their judgment based on oral and
documentary evidences.’- do you agree with the statement? Discuss.

Answer:

 Stand Point:

‘The judges mainly give their judgment based on oral and documentary evidences.’- I do not
agree with the statement.

 Concept of Evidence:

Origin: The word ‘evidence’ is originated from the Latin word ‘evidentia’ which means to prove
any fact by legal resources.

Meaning: In simple sense, evidence means the proof or disproof of any particular fact. So,
evidence does not mean any fact; rather it means the proof or disproof of any fact through
legal resources.

Juristic Opinion: Professor Salmond defines evidence as any fact or statement which has the
power to prove.

Statutory Definition: Section 3 of the Evidence Act, 1872 includes two types of evidence,
namely, oral and documentary evidence.

 Oral and Documentary Evidence:

Oral Evidence: It means ‘statement of witness’. According to section 3 of the Act, the oral
statements given by the witnesses acceptable by the Court is called oral evidence. Section 59 of
Manjare Hassin Raad (191100047) 12

the Act provides that all facts, except the documents’ contents, may be proved by oral
evidence. Section 60 of the Act provides that oral evidence must be direct if it refers to a fact
which could be seen/heard/perceived or if it refers to an expert opinion. Section 32 and 33 of
the Act are the exceptions of section 60 of the Act.

Documentary Evidence: It particularly means ‘documents’. Section 3 of the Act defines

document as any letters/figures/marks used for recording any matter. According to section 3 of
the Act, when the documents are given as evidence for the Court’s inspection, it is called
documentary evidence.

 My Argument:

The classification of evidence u/s 3 of the Act is not complete because it includes only oral and
documentary evidence. Besides oral and documentary evidence, there are so many things
which are capable of good pieces of evidence but they are excluded from the classification of
evidence u/s 3 of the Act. According to Stephen, any good piece of evidence is capable of 3
crucial matters, namely,

a. Nature of facts
b. Nature of evidence
c. Modes of giving evidence

So, based on these three matters, the other types of evidence are given below:

Evidence

Documentary Conclusive
Oral Evidence Real Evidence
Evidence Evidence

Primary
Direct Evidence Documentary
Evidence

Secondary
Circumstantial
Documentary
Evidence
Evidence

Hearsay Evidence
Manjare Hassin Raad (191100047) 13

 Direct, Circumstantial and Hearsay Evidence:

Direct Evidence: The evidence which is given before the Court based on fact in issue is called
direct evidence. This type of evidence is mainly based on personal knowledge or observation. It
is also known as primary oral evidence because such evidence is based on fact in issue, e.g.
Yusuf has been murdered and in this murder case, Belal saw Arif stabbing Yusuf with knife. This
is direct evidence.

Circumstantial Evidence: The evidence which is given which is given before the Court based on
relevant fact is called circumstantial evidence. This type of evidence is mainly based on
surrounding circumstances. It is also known as secondary oral evidence because such evidence
is based on relevant fact, e.g. Yusuf has been murdered and in this murder case, Aman saw
Yusuf’s dead body is floating on the river. This is circumstantial evidence.

Hearsay Evidence: The evidence which is given before the Court based on what the others have
said/heard is called hearsay evidence. This type of evidence is mainly based on the information
given by others and so, the witness has neither personally seen/heard. It is also known as
secondary oral evidence because such evidence is based on relevant fact, e.g. Yusuf has been
murdered and in this murder case, Sabuj heard from his neighbor that Jamal was running with
bloody shirt. This is hearsay evidence. U/s 60 of the Act, hearsay evidence is not acceptable but
such evidence is acceptable u/s 6 (res gestae), 32 and 33 of the Act.

 Primary and Secondary Documentary Evidence:

Primary Documentary Evidence: According to section 62 of the Act, when the original
document is given as evidence before the Court for its inspection, then it is called primary
documentary evidence, e.g. an original registered sale deed provided before the Court as
evidence is primary documentary evidence.

Secondary Documentary Evidence: According to section 63 of the Act, secondary evidence

includes certified copies, copies of the original document through mechanical process, copies
Manjare Hassin Raad (191100047) 14

compared with original document, counterparts of the original document or oral accounts of a
document’s contents by a person who has seen it, e.g. photograph of the original document
provided before the Court as evidence is a secondary documentary evidence.

 Conclusive and Real Evidence:

Conclusive Evidence: According to section 4 of the Act, when one fact is proved and the other
relevant fact shall automatically be proved, then it is called conclusive evidence. It is also known
as conclusive proof. It creates connection between the fact in issue and relevant fact, e.g.
presumption of innocence, legitimacy of a child etc. are conclusive evidence. Section 41 and
112 of the Evidence Act discuss about the conclusive evidence.

Real Evidence: According to the second proviso of section 60 of the Act, when oral evidence
refers to any material object except document, then the Court may inspect such object in its
own discretion which is known as real evidence. In short, when any material object provides
before the Court as evidence, it is called real evidence, e.g. video/tape recording, murder
weapon in a murder case etc. are real evidence.

 Conclusion:

From the above discussion, it can be said that besides oral and documentary evidence, there
are other good pieces of evidence which may be produced before the Court.

10. Differentiate between direct and circumstantial evidence.

Answer:

The differences between direct and circumstantial evidence are given below:

1. Definition: The evidence which is given before the Court based on fact in issue is called
direct evidence. On the other hand, the evidence which is given which is given before the
Court based on relevant fact is called circumstantial evidence.
2. Base: Direct evidence is mainly based on personal knowledge or observation whereas
circumstantial evidence is mainly based on surrounding circumstances.
Manjare Hassin Raad (191100047) 15

3. Primary and Secondary: Direct evidence is known as primary oral evidence because direct
evidence is based on fact in issue whereas circumstantial evidence is known as secondary
oral evidence because circumstantial evidence is based on relevant fact.
4. Illustrations: For example, Y has been murdered and in Y’s murder case, B states as first
prosecution witness before the Court that he saw C stabbing Y with knife which indicates
direct oral evidence. And, A states as second prosecution witness that he saw Y’s dead body
floating on river which indicates circumstantial oral evidence.

11. Discuss the principles regarding to circumstantial evidence.

Answer:

The principles regarding to circumstantial evidence are evolved through various judicial
decisions which are given on the basis of ‘Last seen theory’. In Hossen Ali V State (36 DLR 235)
case, it was held that the principles of circumstantial evidence are:

1. The surrounding circumstances by which the accused is guilty must be proved beyond
reasonable doubt.
2. The facts on such circumstances must exclude the accused’s innocence.
3. The conclusive proof must be needed to prove the accused’s guilt and so, strong suspicion
against the accused is no option in this regard.
4. If theory of guilt and innocence are equally probable, then the accused cannot be said guilty
because of such probability.
Manjare Hassin Raad (191100047) 16

12. “Oral evidence must be direct”- Do you agree with the statement?
Discuss.

Answer:

 Stand Point:

“Oral evidence must be direct”- I partially agree with the statement.

 Concept of Evidence and Oral Evidence:

Evidence: The word ‘evidence’ is originated from the Latin word ‘evidentia’ which means to
prove any fact by legal resources. In simple sense, evidence means the proof or disproof of any
particular fact. So, evidence does not mean any fact; rather it means the proof or disproof of
any fact through legal resources. Professor Salmond defines evidence as any fact or statement
which has the power to prove. Section 3 of the Evidence Act, 1872 includes two types of
evidence, namely, oral and documentary evidence.

Oral Evidence: Oral evidence means ‘statement of witness’. According to section 3 of the Act,
the oral statements given by the witnesses acceptable by the Court is called oral evidence.
According to section 59 of the Evidence Act, 1872, all facts, except documents, may be proved
by oral evidence.

 My Argument:

Oral must be direct on some particular situations prescribed u/s 60 of the Act, namely,

a. If it refers to a fact which could be seen, e.g. the witness says that he saw it;
b. If it refers to a fact which could be heard, e.g. the witness says that he heard it;
c. If it refers to a fact which could be perceived, e.g. the witness says that he perceived it by
his sense;
d. If it refers to an expert opinion
Manjare Hassin Raad (191100047) 17

And there are some exceptions in these regards. Section 32 and section 33 are the exceptions
providing that it is not necessary that oral evidence must be direct.

1. Section 32 of the Act provides that the statement of relevant fact given by a
dead/missing/incapable person is relevant.
2. Section 33 of the Act about the relevancy of certain fact for proving in later proceeding
where the truth of facts is stated.

Conclusion:

From the above discussion, it can be said that oral evidence must be direct on the situations
prescribed u/s 60 of the Act except in section 32 and section 33 of the Act.

13. Is hearsay evidence admissible before the Court?

Answer:

 Hearsay Evidence:

The evidence which is given before the Court based on what the others have said/heard is
called hearsay evidence. This type of evidence is mainly based on the information given by
others and so, the witness has neither personally seen/heard. It is also known as secondary oral
evidence because such evidence is based on relevant fact, e.g. Yusuf has been murdered and in
this murder case, Sabuj heard from his neighbor that Jamal was running with bloody shirt. This
is hearsay evidence.

 Admissibility of Hearsay Evidence:

Hearsay evidence is not acceptable u/s 60 of the Evidence Act which provides that oral
evidence must be direct if it refers to a fact which could be seen/heard/perceived or if it refers
to an expert opinion. But hearsay evidence is acceptable u/s 6, 32 and 33 of the Act.

U/s 6 of the Act, facts, which are not facts in issues but connected to the facts in issues are
relevant whether they happened at the same/different time and place. Section 32 of the Act
Manjare Hassin Raad (191100047) 18

provides that the statement of relevant fact given by a dead/missing/incapable person is

relevant. Section 33 of the Act about the relevancy of certain fact for proving in later
proceeding where the truth of facts is stated.

14. Discuss the concept ‘best evidence rule’ in light of the Evidence
Law.

Answer:

 Meaning of ‘Best Evidence Rule’:

The term ‘best evidence’ means evidence of the highest quality. The best evidence rule is the
rule of evidence which states that the secondary evidence will not be available if the primary
evidence is present.

 Origin of ‘Best Evidence Rule’:

The concept of ‘best evidence rule’ was originated in 18 th century in the landmark cases of
‘Ford V Hopkins’ and ‘Omychund V Barker’ where it was held in both cases that the
admissibility of any evidence is based on best evidence.

 Juristic Opinion on ‘Best Evidence Rule’:

According to Lord Denning,

“Primary evidence shall prevail over secondary evidence.”

 Purposes of ‘Best Evidence Rule’:

The purposes of ‘best evidence rule’ are:

1. Preventing the alteration of evidence; and

2. Ensuring the justice in the Court

 Best Evidence Rule in light of the Evidence Act:

Manjare Hassin Raad (191100047) 19

The provisions of section 60, 64 and 91 of the Evidence Act are based on ‘best evidence rule’.

1. Section 60 of the Act provides that oral evidence must be direct if it refers to a fact which
could be seen/heard/perceived or if it refers to an expert opinion.
2. Section 64 of the Act provides that documents must be proved by primary evidence except
the seven situations prescribed u/s 65 of the Act.
3. Section 91 of the Act provides that whenever there is a question arises before the Court
related to the document’s content, then the original document has to be produced before
the Court.

15. When a document is said to be primary evidence?

Answer:

 Document and Documentary Evidence:

Section 3 of the Act defines document as any letters/figures/marks which may be used for the
purpose of recording any matter. According to section 3 of the Act, all documents given as
evidence for the Court’s inspection is called documentary evidence.

 Primary Evidence:

According to section 62 of the Act, when the original document is given as evidence before the
Court for its inspection, then it is called primary documentary evidence, e.g. an original
registered sale deed provided before the Court as evidence is primary documentary evidence.

 Situations when a document is said to be primary evidence:

1. First Explanation of section 62 of the Evidence Act, 1872: When a document is executed in
several parts, then each of the part is a primary evidence. And, if a document is executed in
counterparts, then each counterpart is a primary evidence against the executed parties.
Manjare Hassin Raad (191100047) 20

2. Second Explanation of section 62 of the Evidence Act, 1872: If one or more documents are
original, then each of them is primary evidence. But if one or more documents are copies of
original, then they are not primary evidence.

16. When does secondary evidence relating to a document become

admissible?

Answer:

 Document and Documentary Evidence:

Section 3 of the Act defines document as any letters/figures/marks which may be used for the
purpose of recording any matter. According to section 3 of the Act, all documents given as
evidence for the Court’s inspection is called documentary evidence.

 Secondary Evidence:

The evidence which is based on relevant fact is called secondary evidence, e.g. photograph of
the original document provided before the Court as evidence is a secondary documentary
evidence.

 Admissibility of Secondary Evidence:

According to section 63 of the Act, secondary evidence includes:

1. Certified copies;
2. Copies of the original document through mechanical process;
3. Copies compared with original document;
4. Counterparts of the original document;
5. Oral accounts of a document’s contents by a person who has seen it

 Illustration:
Manjare Hassin Raad (191100047) 21

A photograph of an original is secondary evidence of its contents, though they are not
compared, if it is proved that the thing photographed was the original.

17. ‘Secondary evidence relating to a document may be given in every

cases’- do you agree with the statement? Discuss.

Answer:

 Stand Point:

‘Secondary evidence relating to a document may be given in every cases’- I deny with the
statement.

 Concept of Secondary Evidence:

The evidence which is based on relevant fact is called secondary evidence, e.g. photograph of
the original document provided before the Court as evidence is a secondary documentary
evidence. According to section 63 of the Act, secondary evidence includes:

1. Certified copies;
2. Copies of the original document through mechanical process;
3. Copies compared with original document;
4. Counterparts of the original document;
5. Oral accounts of a document’s contents by a person who has seen it

 My Argument:

U/s 64 of the Act, documents must be proved by primary evidence except the situations
prescribed u/s 65 of the Act. So, secondary documentary evidence is admissible only in the
seven situations prescribed in section 65 of the Act. So, section 65 of the Act deals with manner
of proof.

U/s 65 of the Act, there are seven situations where secondary evidence may be given, namely,
Manjare Hassin Raad (191100047) 22

a. Possession of the Original Document: When the original is in the possession of the opposite
party or the person who is not in Court’s territorial/subject-matter jurisdiction or the person
legally bound to give it but fails to give it after giving notice u/s 66 of the Act, then any type
of secondary evidence is admissible.
b. Written Format: When the contents and format of the original are written by the opposite
party, then the written admission is admissible, e.g. written contract.
c. Lost or Destroyed: When the original is lost or destroyed, then any type of secondary
evidence is admissible.
d. Uneasy in movability: When the original is not to be easily movable, then any type of
secondary evidence is admissible, e.g. lithography.
e. Public Document: When the original is a public document, then a certified copy of the
document is admissible, e.g. Govt. record.
f. Permitted by the Act or any other law: When the original is the one where a certified copy
is permitted by the Act or any other law, then a certified copy of the document is
admissible.
g. Various Accounts: When the original contains various accounts or other
uneasy/inconvenient documents for the Court for examination, then the oral accounts of
the document’s content by a person or skilled person who has seen is admissible.

Part: B (Problematic Question)

1. A is charged with murder of B. C, D, E and F are witnesses called by

the prosecution. The issue stands whether the murder has committed
or not. Identify the nature of evidence.

Answer:

P.W. 1: C says that he saw A stabbing him.

Manjare Hassin Raad (191100047) 23

Comment: Firstly, this is oral evidence because it indicates the statement of witness.
Secondly, it is direct evidence because the witness directly saw the happening of the crime.

P.W. 2: D says that he saw A running with a bloody knife.

Comment: Firstly, this is oral evidence because it indicates the statement of witness.
Secondly, this is circumstantial evidence because it is based on surrounding circumstances, i.e.
fact in issue.

P.W. 3: E says that he heard from D that he (D) saw running with a bloody knife.

Comment: Firstly, this is oral evidence because it indicates the statement of witness.
Secondly, this is hearsay evidence because the witness heard from D that he (D) saw running
with a bloody knife.

P.E.: Prosecution party submitted an original agreement deed between A and Q where Q
agreed to pay 5 Lakh taka to A if he (A) murders B.

Comment: Firstly, this is documentary evidence because the evidence is related to contents
of document. Secondly, this is primary evidence because the document is original.

P.W.4: This is real evidence because the evidence is material object.

2. Discuss res gestae.

Answer:

 Meaning:

Though the term ‘res gestae’ is originated from Roman Law, it is mostly used in USA and UK in
modern era. It means ‘things said/done’. In a nutshell, res gestae means facts forming the part
of a same transaction.

 Principle:
Manjare Hassin Raad (191100047) 24

The principle of res gestae is that immediate reaction of any part of the chain of events are
closely interconnected. So, if any immediate fact fails to link itself with the main transaction, it
cannot be a res gestae.

 Statutory Provision:

According to section 6 of the Evidence Act, 1872, facts which are not in issue but connected to a
fact in issue are relevant whether they happened at the same or different time and place.

 Judicial Decisions:
1. Sawal Das V State of Bihar: The cry of the children from the house when their mother
was killed by their father becomes a part of the same transaction and so, it shall become
admissible as res gestae.
2. Ratten V R: The evidence given by the telephone operator where the dead victim called
him for asking help to the police becomes a part of the same transaction and so, it shall
become admissible as res gestae.
3. Parvati Devi V State of West Bengal : If a raped girl makes a police complain after
being freed immediately, then her statement shall be admissible as res gestae. But if the
raped girl after being freed goes to her house and complains to her mother, then such
statement shall not be admissible as res gestae.

 Illustrations:
a. A is accused of the murder of B by beating him. Whatever was said or done by A or B or the
by-standers at the beating, or so shortly before or after it as to form part of the transaction,
is a relevant as res gestae.
b. A is accused of waging war against Bangladesh by taking part in an armed insurrection in
which property is destroyed, troops are attacked, and goals are broken open. The
occurrence of these facts is relevant as res gestae, as forming part of the general
transaction, though A may not have been present at all of them.
Manjare Hassin Raad (191100047) 25

c. A sues B for a libel contained in a letter forming part of a correspondence. Letters between
the parties relating to the subject out of which the libel arose, and forming part of the
correspondence in which it is contained are relevant facts, though they do not contain the
libel itself.
d. The question is, whether certain goods ordered from B were delivered to A. The goods were
delivered to several intermediate persons successively. Each delivery is a relevant fact.

3. Discuss occasion, cause, effect and opportunity.

Answer:

According to section 7 of the Evidence Act, 1872, facts, which are the occasion, cause or effects
of facts in issue are relevant.

1. Occasion: The question is, whether A robbed B. The facts that, shortly before the robbery,
B went to a fair with money in his possession, and that he showed it or mentioned the fact
that he had it, to third persons, are relevant.
2. Cause: A sues B upon a bond for the payment of money. B denies the making of the bond.
The fact that, at the time when the bond was alleged to be made, B required money for a
particular purpose, is relevant. The cause and motive is similar.
3. Effect: The question is, whether A murdered B. Marks on the ground, produced by a
struggle at or near the place where the murder was committed, are relevant facts, e.g.
footprints.
4. Opportunity: The question is, whether A poisoned B. The state of B's health before the
symptoms ascribed to poison, and habits of B, known to A, which afforded an opportunity
for the administration of poison, are relevant facts.

4. Discuss motive, preparation and conduct.

Answer:

 Motive:
Manjare Hassin Raad (191100047) 26

Motive is a mental state which encourages a person to do something. There is hardly any action
without any motive and so, an act without motive is an act without cause. According to section
8 of the Act, facts, which constitute motive for the fact in issue, are relevant.

 Illustrations of Motive:
a. A is tried for the murder of B. The facts that A murdered C, that B knew that A had
murdered C, and that B had tried to extort money from A by threatening to make his
knowledge public, are relevant. (Motive in Crime)
b. A sues B upon a bond for the payment of money. B denies the making of the bond. The fact
that, at the time when the bond was alleged to be made, B required money for a particular
purpose, is relevant. (Motive in civil proceeding)

 Judicial Decisions:
a. Taslimuddin V The State: Though motive is relevant in any criminal matter like murder
case, but it is not necessary for prosecution to prove motive before the Court.
b. Farid Khan V The State: It is not necessary for prosecution to prove motive in direct
evidence but in circumstantial evidence, motive is a key factor.

 Preparation:

The mental state which creates a particular situation to create a consequences is called
preparation. According to section 8 of the Act, facts, which constitute preparation for the fact in
issue, are relevant.

 Illustrations:
a. Preparation + Previous Conduct: A is tried for the murder of B by poison. The fact that,
before the death of B, A procured poison similar to that which was administered to B, is
relevant.
b. Preparation + Previous Conduct: The question is whether a certain document is the will of
A. The facts, that not long before the date of the alleged will A made inquiry into matters
to which the provisions of the alleged will relate, that he consulted with an advocate in
Manjare Hassin Raad (191100047) 27

reference to making the will, and that he caused drafts of other wills to be prepared of
which he did not approve, are relevant.
c. Preparation + Previous Conduct + Subsequent Conduct: A is accused of a crime. The facts
that, either before or at the time of, or after the alleged crime, A provided evidence which
would tend to give to the facts of the case an appearance favorable to himself, or that he
destroyed or concealed evidence, or prevented the presence or procured the absence of
person who might have been witnesses, or suborned persons to give false evidence
respecting it, are relevant.

 Conduct:

The expression of human behavior of any act or omission is called conduct. Conduct is classified
into two ways, namely, previous and subsequent conduct.

 Previous Conduct:
a. Preparation + Previous Conduct: A is tried for the murder of B by poison. The fact that,
before the death of B, A procured poison similar to that which was administered to B, is
relevant.
b. Preparation + Previous Conduct: The question is whether a certain document is the will of
A. The facts, that not long before the date of the alleged will A made inquiry into matters
to which the provisions of the alleged will relate, that he consulted with an advocate in
reference to making the will, and that he caused drafts of other wills to be prepared of
which he did not approve, are relevant.
c. Preparation + Previous Conduct + Subsequent Conduct: A is accused of a crime. The facts
that, either before or at the time of, or after the alleged crime, A provided evidence which
would tend to give to the facts of the case an appearance favorable to himself, or that he
destroyed or concealed evidence, or prevented the presence or procured the absence of
person who might have been witnesses, or suborned persons to give false evidence
respecting it, are relevant.

 Subsequent Conduct:
Manjare Hassin Raad (191100047) 28

a. The question is whether A robbed B. The facts that, after B was robbed, C said in A's
presence- "the police are coming to look for the man who robbed B," and that immediately
afterwards A ran away, are relevant.
b. The question is, whether A committed a crime. The fact that A absconded after receiving a
letter warning him that inquiry was being made for the criminal, and the contents of the
letter are relevant. In Abdul Khaleque V The State case, it was held that mere abscondence
is not sufficient to accuse a person but if a person committed a crime and absconded for
months, then it is sufficient to accuse the person.
c. A is accused of a crime. The facts that, after the commission of the alleged crime, 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. In Abdul Khaleque V The State case, it was held that mere abscondence is not
sufficient to accuse a person but if a person committed a crime and absconded for months,
then it is sufficient to accuse the person.
d. The question is whether A was ravished. The facts that, shortly after the alleged rape, she
made a complaint relating to the crime, the circumstances under which, and the terms in
which, the complaint was made, are relevant. The fact that, without making a complaint,
she said that she had been ravished is not relevant as conduct under this section, though it
may be relevant as a dying declaration u/s 32(1), or as corroborative evidence u/s 157. In
Parvati Devi V State of West Bengal case it was held that if a raped girl makes a police
complain after being freed immediately, then her statement shall be admissible as res
gestae. But if the raped girl after being freed goes to her house and complains to her
mother, then such statement shall not be admissible as res gestae.
e. The question is, whether A was robbed. The fact that, soon after the alleged robbery, he
made a complaint relating to the offence, the circumstances under which, and the terms in
which, the complaint was made, are relevant. The fact that he said he had been robbed
without making any complaint, is not relevant, as conduct under this section, though it may
be relevant as a dying declaration u/s 32(1), or as corroborative evidence u/s 157.
Manjare Hassin Raad (191100047) 29

5. Discuss facts necessary to explain or introduce relevant facts.

Answer:

According to section 9 of the Evidence Act, the following facts are relevant:

a. Facts which explain/introduce a fact in issue/relevant fact;

b. Facts which support/rebut a fact in issue/relevant fact;
c. Facts which identify anything/any person relevant (TI Parade);
d. Facts which determines the time and place of the happening of any fact in issue/relevant
fact;
e. Facts which shows the relation of parties

 Facts which explain a fact in issue/relevant fact:

a. A sues B for inducing C to break a contract of service made by him with A. C, on leaving A's
service, says to A- "I am leaving you because B has made me a better offer." This
statement is a relevant fact as explanatory of C's conduct, which is relevant as a fact in
issue.
b. A, accused of theft, is seen to give the stolen property to B, who is seen to give it to A's wife.
B says as he delivers it- "A says you are to hide this." B's statement is relevant as
explanatory of a fact which is part of the transaction.
c. A is tried for a riot and is proved to have marched at the head of a mob. The cries of the
mob are relevant as explanatory of the nature of the transaction.

 Facts which introduce a fact in issue/relevant fact:

Manjare Hassin Raad (191100047) 30

a. A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter alleged to be
libelous is true. The position and relations of the parties at the time when the libel was
published may be relevant facts as introductory to the facts in issue.

 Facts which determines the time of the happening of any fact in

issue/relevant fact:
a. The question is, whether a given document is the will of A. The State of A's property and of
his family at the date of the alleged will may be relevant facts.

 Facts which determines the place of the happening of any fact in

issue/relevant fact:

A is accused of a crime.

a. The fact that, soon after the commission of the crime, A absconded from his house, is
relevant u/s 8, as subsequent conduct to and affected by facts in issue.
b. The fact that at the time when he left home he had sudden and urgent business at the place
to which he went, is relevant as determining the place of happening of any fact in
issue/relevant fact u/s 9, as tending to explain the fact that he left home suddenly.
c. The details of the business on which he left are not relevant, except in so far as they are
necessary to show that the business was sudden and urgent.

 Facts which shows the relation of parties:

a. The particulars of a dispute between A and B about a matter unconnected with the alleged
libel are irrelevant, though the fact that there was a dispute may be relevant if it affected
the relations between A and B.
Manjare Hassin Raad (191100047) 31