Md. Tajul Islam
Enactment of Evidence Act 1872 was undoubtedly a historic touch stone towards in the administering Justice System both in the trial procedure of Civil & Criminal cases. It provides legal recognition and process of proving & marking documents as Exhibits during Trial both in administration Criminal Civil Justice System but still today several provisions of this law to the students, Advocates, and even to the Judges are too vague or unnecessarily criminalize legitimate expression. The main thrust of the paper is to examine the evolution of the legal provisions regarding the topics i.e. the mechanisms for proving & marking documents as Exhibits during Trial and how the documentary evidences have to be assessed in the process of administering or in the dispensation of Justice in our legal system and that theme of the topics of Evidence Act would be not only as a part of conventional element of proving cases but also to provide us with a glance of profound legal depth of different disposition moreover the Judges, advocates and student’s struggle to conquer the difficult situations in which they find themselves entrap with.
Introduction:
We know the Evidence Act, 1872[1] is one of the important pillars of the whole process of Legal Profession as well as the Evidence Act is the Instrumental Law for the civil and Criminal practitioner. Evidence, as used in judicial proceedings, has several meanings. The two main senses of the word are: firstly, the means, apart from argument and inference, whereby the Court is informed as to the issues of fact as ascertained by the pleadings; secondly, the subject-matter of such means. The word is also used to denote that some fact may be admitted as proof and also in some cases that some fact has relevance to the issues of fact. In a real sense evidence is that which may be placed before the Court in order that it may decide the issues of fact. There also are other shades of meaning that it is not necessary to discuss here. Evidence, in the first sense, means the testimony, whether oral, documentary or real, which may be legally received in order to prove or disprove some fact in dispute
What does the term of Evidence means and includes;-Section-3[2] of the Evidence Act, 1872, The ‘law of evidence’ is the body of legal rules that determines whether and how such evidence can be adduced. It regulates what material is legally admissible for the purpose of establishing facts in dispute, the manner in which it may be placed before the court, and even, on occasion, how the tribunal should consider it. In theory, it should ensure a fair and efficient trial process.
The word ‘evidence’ signifies, in its original sense, the state of being evident, i.e., plain, apparent or notorious. The meaning of the term is not confined to proof before a judicial tribunal. Evidence should not be confused with proof. Accurately speaking, the terms ‘proof’ and ‘evidence’ are distinguished in this: that proof is the effect or result of evidence, while evidence is the medium of proof. As soon as a document is produced for the inspection of the court, it becomes evidence and it could be actedupon, when it is proved. When it is found acceptable, then it is to be considered in conjunction with other items of evidence. Best says: But by an almost peculiar infection of our language, it is applied to that which tends to render evidence or to generate proof. This is the sense in which it is commonly used in our law books.. Evidence, thus understood, has been well defined as any matter of fact, the effect, tendency, or design of which is to produce in the mind a persuasion, affirmative or disaffirmative,() of the evidence of some other matter of fact.
According to WHARTON[3] (the main function of the rules of evidence is to narrow down the matter which comes before the Court to the facts relating to those matters which have a logical probative value in determining the innocence or guilt of the accused and to prevent giving judgments based on illogical conclusions or prejudice, and as an aid to the administration of justice
Objectives[4] of Law of Evidence: One great object of the Evidence Act was to prevent laxity in the admissibility of evidence, and to introduce a correct and uniform rule of practice that was previously in vogue. The Evidence Act is not intended to do more than prescribe rules for the admissibility or otherwise of evidence on the issues as to which the Courts have to record findings. The object in adducing evidence is to find out the truth or otherwise of the disputed facts over all points in issue, and that no evidence is adduced which is not relevant to the issue, though evidence of collateral facts is admissible.
The main principles which underlie the law of evidence are:
1) Evidence must be confined to the matters in issue;
2) Hearsay evidence must not be admitted; And
3) the best evidence must be given in all cases.
‘Document’ & ‘Documentary evidence’ what does it signifies;
‘Document’ occurring in section 3(16)[5] of General Clauses Act and in section 3 of the Evidence Act-Meaning of- Whether kabalas are documents as referred to in those acts? In the case of Abdus Sattar Bhuiyan Vs Deputy Commissioner Dhaka[6] (42 DLR 151). A document can be treated as duly admitted, where its admission without being proved is not objected to by any party affected. Mode of proof being a question of procedure may be waived and if this is done, there can be no subsequent objection. Objection as to relevancy, may however, be raised even though evidence was admitted in the trial court without tender. But where evidence is statutorily made inadmissible, it cannot be rendered admissible by consent. When a document is admitted without objection, it would follow that the entire contents of the document are admitted. When the accused made a statement that she stabbed the deceased in order to save her life and in self-defence, this statement does not amount to extra-judicial confession. See Section 24 of Evidence Act, and it was held in the case of State Vs. Hasan Ali 4 BLC 582[7].
Documentary evidence means all documents produced for the inspection of the court i.e. what is inspected document, is decided in the case of Saddah Sardar[8] case, cited in 9 DLR 645, and the definition given of a ‘document’ is very wide, covering many things which would not be considered documents in the popular acceptation of the word. A video cassette may be the document within the meaning of the Evidence Act is accordingly admissible in evidence. It was held in the case of Khaleda Akthar Vs. State[9] (37 DLR 275). Aside from real evidence, of which the court or jury are the original percipient witnesses and evidence of matters of which judicial cognizance is taken, all evidence come to the tribunal either:
(a) as the statements of a witness; or (b) as the statement of a document
It is a well-settled principle of law that the documents upon which reliance is sought to be placed must be brought on records of the case legally. They do not prove themselves; a witness must be examined to prove the documents. Reference should be made to the definition given in section-3. Exchequer tallies and wooden scores used by milkmen and bakers have been included in the term.
The Evidence Act draws a distinction between proof of the contents of a document and the proof of its execution or authorship of the document. The rules mentioned in sections 61 to 66[10] deals with the proof of the contents of a document and the rules mentioned in sections 67 to 73[11] deal with the proof of the execution of documents. For the purpose of proof of its execution of a document, the Act divides the documents into two classes:
(i) Documents not required by law to be attested; and
(ii) Documents required by law to be attested.
If the documents fall within the categories mentioned in Section 74(1), they are documents of which court will take judicial notice under Section 57(1) or 57(2) or Section 57(6), or, they are relevant under Sections 35 to 38. The court takes judicial notice of the truth of the contents, because it presumes that the documents are genuine, under Section 81 and the documents are relevant to prove the truth of their contents because they are genuine. Since the presumption is that the documents are genuine, whoever contests they are not genuine will have to prove that they are not genuine.
The document which deals with private transactions or personal affairs of a private individual is known as private document. In a wide sense the documents which are not public documents are private documents i.e. agreement, contract, letter etc. Private documents must be proved by production of the original document. A private document does not become public document by mere filing of the same in the court of law.
Proof of contents of documents:
* The contents of documents may be proved either by primary or by secondary evidence.
* Primary evidence means the documents itself produced for the inspection of the Court.
* Secondary evidence means and includes
1) Certified copies given under the provisions as per section 76 of the Evidence Act;
2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
3) Copies made from or compared with the original;
4) Counterparts of documents as against the parties who did not execute them;
5) Oral accounts of the contents of a document given by some person who has himself seen it.
Documents must be proved by primary evidence except in the cases hereinafter mentioned. In the Case Afzal Meah v. Bazal Ahmed[12] (45 DLR 15) held that Primary evidence of document means document itself and it is produced for inspection of the Court. When a party seeks to prove the contents of document the best evidence rules require that party should produce the original of the primary evidence.
Cases in which secondary evidence relating to documents may be given.- Secondary evidence may be given of the existence, condition or contents of a document in the following cases:- In Sova Rani Guha alias Sova Rani Gupta v. Abdul Awal Mia and others[13](47 DLR AD 45) held that a party producing secondary evidence of a document is not relieved of the duty of proving the execution of the original. Even where a document is exhibited without objection the Court is to be satisfied as to its execution.
(a) When the original is shown or appears to be in the possession or power-of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it. Any secondary evidence of the contents of the document is admissible.
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest. In this case, written admission is admissible.
(c) when the original has been destroyed or lost, or when 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. In this case, any secondary evidence is admissible.
(d) when the original is of such a nature as not to be easily moveable. In this case, any secondary evidence is admissible.
(e) when the original is a public document within the meaning of section 74. A certified copy of the document but no other kind of evidence is admissible. In Government of Bangladesh v. Mirpur Semipucca (Tin-shed) Kalayan Samity & others[14] (54 DLR 365) held that documents being photo copies of the originals which were not called for and are confidential official letters beyond the access of the plaintiffs are inadmissible evidence in the absence of originals.
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in Bangladesh to be given in evidence. A certified copy of the document but no other kind of evidence is admissible.
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In this case, evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his Advocate, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case. In National Bank Ltd. and others v. Habib Bank Ltd. and others[15] (56 DLR 15) an omission to object in respect of inadmissible evidence would not make it admissible. Reliance in this regard may be made to the decision in the case of Miller v. Babu Madho Das[16] 23 IA 106.
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:-
(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;
(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in Court;
(5) when the adverse party or his agent has admitted the loss of the document;
(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court. In Joynal Abedin & others v. Mafizur Rahman[17] (8 BSCD 130, 44 DLR AD 162) held that secondary evidence, admissibility of- Certified copies of certain kabuliyats were filed without calling for the original copies. Learned Judge of the High Court Division on a wrong consideration of section 66 Evidence Act left those out of consideration treating them as inadmissible as the originals were not called for. But the documents having been filed and marked exhibits without any objection the question of inadmissibility of those documents cannot be raised at a subsequent point of time.
Who may prove the execution and authorship of private document-
- The Executant himself; it was held in the case of Osena Begum alias Babuler Ma and another v. State[19] (55 DLR 299) held that newspaper report cannot be admitted into evidence unless the correspondent of such a report comes to the witness box to vouchsafe in support of the report on oath.
- The attesting witness; In Haji Sk. Md. Lutfur Rahman v. Chairman, Court of Settlement[20] (45 DLR AD 136) held that a registered document carries with it a presumption of validity which can be rebutted after giving due opportunities to the parties. The case is remanded for disposal after giving such opportunity to prove genuineness or otherwise of the kabala in question.
- The scribe of the deed in question; it was held in the case of Kamaluddin and others v. Md. Abdul Aziz and others[21] (56 DLR 485) held that registration, attaches a statutory presumption which extends to the registration of the deed only. Such presumption is never intended to extend to the genuineness of the transaction or to prove execution and/or recitals in the deed.
- The person who knows the handwriting of the Executant;
- Admission of execution by adverse party;
- By comparison between dispute signature and admitted signature;
“In Nowazullah v. Waz Khatun[22] held that the court at the time of deciding a case may compare the disputed handwriting and signature with the admitted handwriting or signature of the person concerned and come to the conclusion about the genuineness of the same. Such finding being a finding of fact cannot be assailed either in Second Appeal or in Revision.”
* By procuring the opinion of thump impression expert;
* By producing a thirty years old document from a proper custody.
In the case of private documents, their contents are proved either by primary or secondary evidence (see Sections 61 to 66); the genuineness is established by adducing evidence according to the rules in Sections 67 to 73; and the truth of their contents is ordinarily established by means of independent, direct or circumstantial evidence. If direct evidence of the truth of the contents is not available, resort can be had to Section 32[23].
Whether the documents are public or private, certain presumptions are allowed to be drawn with respect to the documents which are set out in Chapter X dealing with the weight of evidence.
Objections as to admissibility of secondary evidence can be classified as:
(i) Objection that the original document is inadmissible;
(ii) Objection as to the mode of proof.
Objections under category (i) can be raised at any stage even after the document is marked as an exhibit; but objections to documents under category (ii) should be raised at the time it is tendered as evidence, but not after it is marked as an exhibit.
Proof of Public Documents:
The public documents as listed out under section 74[24] of the Evidence Act may be proved by production of certified copy in view of section 77[25] of the said Act. The other official documents or public documents as mentioned under section 78[26] may be proved by production of the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a notary public, or of a Bangladesh Consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.
Instrument
Instrument term that is defined by the Act is ‘Instrument’ which is defined in section 3 of the Act, means a non-testamentary instrument. Instrument means document. The nature of interest in a property i.e. proprietorship is proved against the world in the court of law by a document.Document shows the ‘preponderance of probability’ or prima facie proof of interest in the holder of document. A civil case regarding dispute of title may prima facie by proved by adducing documentary evidences like deeds. All rights, title and interest in a property is evidenced by legal instruments i.e. written, registered formal deeds or conveyance. ‘Conveyance is transfer of interest through deeds.’That Act is very specific about instruments. Non-testamentary instruments like sale deed, mortgage deed, gift deed etc. are only covered in the definition. It excludes a will as the Act excludes transfer of property by operation of law. ‘An instrument is the transaction and the evidence of transaction as well.’
Attestation and Execution of Instrument or Deed:
According to section 3 of the Act, ‘Attested’, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has been the executant’s sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executants, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.
The transfer is done via an instrument i.e. deed which is registered and attested by two competent witnesses. The parties to transfer in such case are known as executants. Attested deeds are documentary evidence which has an evidentiary value for probative issues. The witnesses who attest the documents can be examined in civil trial to ascertain the veracity of transaction and rights, title, interests of parties. Transfer of valuable properties (where value exceeds Rs. 100) is done by written deeds which are attested before registrar by two competent witnesses. Competent witness means major and of sound mind. Attestation firstly confirms that executants (transferor and transferee) only executed the document/deed and secondly it confirms that executants executed the documents with free consent and there was no force, fraud or undue influence over the executants.
But the question remains is how to Attest? The act requires the documents to be attested by two witnesses present who have seen execution to sign or affix his mark (To attest is to bear witness to a fact)-either see the execution sign or receive personal acknowledgement of his signature. Witness has to put signature for the purpose of attesting (for the purpose of authenticating and not as a scribe or expressing consent to the transaction). Thus a registration officer putting his sign is not attested, he is performing his statutory duty. The attester should not be a party to the deal. Attestation need not be at some specific place in the document. In case of an illiterate person putting his mark, the contents should be explained to him, further it need not be in a particular from where pardanashin lady sitting behind a curtain put her thumb on the deed and her, husband signed, witness attested thereon.
Relevant provisions of CRO (Vol-1)[27] as to meaning the document as Exhibits: Section 67 to 73, 77, 78 and 90 of the Evidence Act has clearly pointed out the mechanism for proving Documents before the competent court. Civil Rules and Order Volume 1, Chapter 17, rules 393 to 402 provides for the procedure of marking the Documents as exhibits.
Rule 398 states that documents admitted in evidence shall be marked with numerals 1, 2, 3, etc., and capital letters A.B.C., etc., according as they are admitted on behalf of the plaintiffs/petitioners or defendants/opposite party and separate lists of the documents thus admitted shall be prepared by the Bench Clerk in Form (J) 23 and signed by the presiding Judge.
The documents shall be entered in the lists in the order in which they are admitted and marked. If the capital letters are exhausted, double capitals shall be used.
Rule 399 (1) provides that when there are two or more parties defendants, the documents of the first party defendant may be marked A1, B1, C1, etc., and those of the second A2, B3, C3, etc.,
Rule 399 (2)(a) states that where an exhibit forms part of a voluminous documents, such as an account book, khata, etc., it should be clearly indicated by means of a slip of paper pinned to the sheet or page on which it occurs, the exhibit marks being noted on the slip. (b) when an entry in an account book isadmitted in evidence, the portion so admitted shall be clearly indicated by surrounding the same in red ink or chalk.
Rule 400 provides that when documents are admitted at the instance of the Court and neither party is willing to accept them as evidence on his behalf, they shall be marked I, II, III, etc..
Rule 401 states that when a number of documents of the same nature are admitted, as for example, a series of receipts for rent, the whole series should be marked with the same. Same numeral and small letters of the alphabet in brackets, when put in by the plaintiff/petitioner [thus: 1(a), 1(b), 1(c), etc.], or with the same capital letter and numerals in brackets, when put in by the defendant/opposite party
.Criminal Rules & Orders[28]Vol-1, Chapter-IX, Rules 147 to 154 provide as to how document may be marked as exhibit in criminal cases.
Relevant provisions of Criminal Rules & Orders Vol-2
Nomenclature of the witnesses
PW = Plaintiff’s Witness
PW = Petitioner’s Witness
PW = Prosecution Witness
DW = Defendants Witness
DW = Defense Witness
CW = Court Witness
OPW = Opposite Parties Witness
Nomenclature of the Documents admitted as a evidence;
- Documents exhibited by the plaintiff or prosecution be marked as Ext. 1, 2, 3 etc.
- Documents exhibited by the defendent or defense be marked as Ext. A, B, C etc.
- Same natures of documents be marked as Ext. 1 series, A series etc.
- Material exhibits be marked as material Ext. i, ii, iii, etc.
Documents Exhibited As Evidence: Rule 150 of Criminal Rules and Orders, Vol. I[29] states that-
(1) The Court shall mark the documents which are admitted in evidence on behalf of the prosecution with numerals 1, 2, 3 etc. and documents admitted in evidence on behalf of the defence with capital letters A, B, C etc. e.g., Exhibit 1, Exhibit 2 etc. Exhibit A, Exhibit B etc.
(2) When a number of documents of the same nature are admitted e.g. a series of rent-receipts, the whole series shall bear one number or one capital letter and a sub-number in brackets shall be added to distinguish each paper of the series, e.g. Exhibit 1, Exhibit 1(1), Exhibit 1(2) etc. Exhibit A, Exhibit A(1), Exhibit A(2) etc.
(3) Documents shall be marked in the order in which they are admitted and if the capital letters are exhausted, double capital letters shall be used.
Relevancy and admissibility of Documentary Evidences in the process of assessing the evidence;
Documents may provide the key to the entire case. The rules governing documentary evidence must therefore provide a sound basic structure for its admissibility and use. Unless that structure is in place, there is another rule of evidence that all admissible evidences are relevant but all relevant evidences may not be admissible. A piece of evidence, howsoever relevant, is not admissible if not permitted by the Evidence Act to be admissible. Relevancy is genus and admissibility is a species. Hearsay evidence may be relevant but not admissible. For example, sections 91 to 99[30] bars giving oral evidence where the same can be proved by documentary evidence. Where the same can be proved by documentary evidence? Oral evidence with regard to documents mentioned in these sections although relevant will not be admissible. With regard to relevancy and admissibility there are two-stage test: first comes the question of relevancy and then comes the question of admissibility. When a particular fact is offered as relevant evidence, the judge would first asks himself a question: “Is the fact relevant? If it is, then under which section is it relevant?” If the fact comes under one or more of the sections relating to relevancy, then it is legally relevant and the only question is its admissibility. First, a particular fact may be relevant to a matter in issue but it may not be admissible. For example, a privileged communication may be relevant in a suit but it may not be admissible. Second, relevancy is genus whereas admissibility is species. Third, the question of relevancy is to be decided first before the question of admissibility. The question of admissibility is to be determined by the judge under section 136[31] of the Evidence Act. Fourth, there may be evidences which would be relevant but are not admissible. For example, a conversation between a husband and wife may be relevant in a suit but this is not admissible under section 122 of the Evidence Act.
Conclusion:
In fine, it is to be said that the consumers of justice covet uncontaminated, inexpensive and expeditious justice. However, it will be not exaggerated to say that the present criminal & civil justice system in Bangladesh is eroding justice seekers’ confidence. The reason for people’s lack of confidence in criminal and civil justice mechanism is due to its faulty, non-scientific and disoriented state in present context. It is very important to note that every student of law, judges and legal practitioner should know the above discussions regarding the proving and marking the documentary evidences as exhibit with their proper application in administering civil and criminal justice system for their day to day life only in ensuring justice other wise the justice seeker confidence in getting justice would be frustrated then the objectives of the justice system would have been bound to be collapsed. Documentary evidence lies at the heart of much litigation and its importance cannot be overestimated. In both civil and criminal cases parties will seek to prove and disprove many issues by resort to documents. In many instances, large numbers of documents are adduced as evidences and those documents need to be assessed very properly and exactly for ensuring justice.
[1] Act No.I of 1872, 15th March, 1872
[2] Section-3 of the Evidence Act, 1872
[3] Wharton’s Criminal Evidence (15th ed., 1997-date). Print: KF9660.W43 1997. West law Next.)
[4] Gazette of India, 1868, page-1574;
[5] section 3(16)[5] of General Clauses Act,1897
[6] Abdus Sattar Bhuiyan Vs Deputy Commissioner Dhaka (42 DLR 151)
[7] State Vs. Hasan Ali 4 BLC 582
[8] Saddah Sardar case, 9 DLR 645
[9] Khaleda Akthar Vs. State, 37 DLR 275
[10] sections 61 to 66 of the Evidence Act, 1872
[11] sections 67 to 73 of the Evidence Act, 1872
[12] Afzal Meah v. Bazal Ahmed, 45 DLR 15,
[13] Sova Rani Guha alias Sova Rani Gupta v. Abdul Awal Mia and others(47 DLR AD 45)
[14]Government of Bangladesh v. Mirpur Semipucca (Tin-shed) Kalayan Samity & others, 54 DLR 365
[15]National Bank Ltd. and others v. Habib Bank Ltd. and others, 56 DLR 15
[16] Miller v. Babu Madho Das, 23 IA 106
[17] Joynal Abedin & others v. Mafizur Rahman, 8 BSCD 130, 44 DLR (AD) 162
[18] Md. Jashimuddin Kanchan v. Md. Ali Ashraf, 42 DLR AD 289
[19] Osena Begum alias Babuler Ma and another v. State,55 DLR 299
[20] Haji Sk. Md. Lutfur Rahman v. Chairman, Court of Settlement, 45 DLR AD 136
[21] Kamaluddin and others v. Md. Abdul Aziz and others, 56 DLR 485
[22] Nowazullah v. Waz Khatun
[23] Section 32 of the Evidence Act, 1872
[24] ibid;
[25] ibid;
[26] ibid;
[27] Civil Rules and Order (Vol-1) Civil Rules and Order Volume 1, Chapter 17, rules 393 to 402 provides for the procedure of marking the Documents as exhibits.
[28] Criminal Rules & Orders Vol-1, Chapter-IX, Rules 147 to 154 provide as to how document may be marked as exhibit in criminal cases
[29] ibid;
[30] sections 91 to 99 of the Evidence Act,1872
[31] Section 136 & 122 ibid;
By Md. Tajul Islam, Joint District & Session Judge, Bangladesh Judicial Service. Master’s in criminology and Criminal Justice System and LL.B(hon’s), Dhaka University.
