Evidence Act
[I of 1872]
Section 1–
There is a
distinguishing feature between the evidence before the Court in a judicial
proceeding and before any other person not being a Court and not dealing with a
judicial proceeding.
Ayub Ali vs Bangladesh
46 DLR 191.
Section 3–
When a fact
already stands proved according to the requirements of section 3 of the
Evidence Act and there being no particular method specified for proving a fact
any demand to require a higher standard of proof is an error of law.
Md Shahadat
Hossain vs Khohiladdi Shaikh 37DLR126.
Section 3–
‘Proved’–The
meaning of the word ‘proved’ explained.
The
expression “Proved” as defined in section 3 of the Evidence Act
denotes either of the two conditions – (l) when the existence of a thing is so
probable that a prudent man would assume its existence under the circumstances.
Thus a fact may be proved by direct evidence when the fact is attested by
witness, things or documents, or it may be proved by indirect or circumstantial
evidence by witness, things or documents which the law deems sufficiently
proximate to the principal fact. This is not evidence direct to the point in
issue but evidence of various facts other than the fact in issue which are so
associated with the fact in issue that taken together they form a chain of
circumstances indicating that the main fact exists.
There is no
particular mode of proving a fact to the exclusion of all other modes unless
there is a law requiring a particular mode of proof.
Md Shahadat
Hossain vs Kohiladdi 37 DLR 126.
Section 3–
Nowhere it
has been specifically laid down that a fact to be proved necessarily requires
evidence by witness.
Abdul Mannan
vs Abdul Aziz 46 DLR 477.
Section 3–
Benefit of
doubt to the accused would be available provided there is supportive evidence
on record. For creating doubt or granting benefit of doubt, the evidence is to
be such which may lead to such doubt. The law would fail to protect the
community, if fanciful possibilities are admitted, thus, deflecting the course
of justice.
Al-Amin and
5 others vs State 51 DLR 154.
Section 3–
There is no
bar to find an accused guilty on the basis of testimonies of police personnels
if their testimonies appear to be reliable.
Nizam Hazari
vs State 53 DLR 475.
Section 3–
There is no
authority of law to suggest that if a part of the evidence of a case is
disbelieved, the remaining part cannot be believed without independent
corroboration, particularly when it is supported by the attending circumstances
of the case.
Hazrat Khan
@ Hazrat Ali Khan vs State 54 DLR 636.
Section 3–
If it is
proved that the deceased was last seen alive in the company of the accused in
the absence of any other reasonable explanation as to the safe departure of the
deceased from the · company of the appellant no conclusion other than the guilt
of the accused can be drawn.
Bhola vs
State 55 DLR 36.
Section 3–
The
confession of co-accused can be considered to lend support to the other
evidence, if any, but in this case there is no other evidence so far appellant
Idris is concerned other than the confessional statement of the co–accused.
Therefore the conviction of Idris is based on no evidence and is liable to be
set aside.
State vs
Rajiqul Islam 55 DLR 61.
Section 3–
Circumstantial
evidence may be and frequently is more cogent than the evidence of
eye–witnesses. It is not difficult to produce false evidence of eye–witnesses.
It is, on the other hand, extremely difficult to produce circumstantial
evidence of a convincing character and therefore, circumstantial evidence, if
convincing, is more cogent than the evidences of eyewitnesses.
State vs
Moslem 55 DLR 116.
Section 3–
Although all
questions in a civil case are to be determined on preponderance of probability,
an allegation of criminal nature in a civil case is to be proved with a higher
degree of probability.
Islami Bank
and others vs Dewan Md Yusuf 55 DLR 624.
Section 3–
There should
not be exaggerated devotion to the rule of benefit of doubt at the expense of
social defence and course of justice cannot be allowed to be deflected on the
concept of the rule of benefit of doubt. It is true to say with Viscount Simons
that “miscarriage of justice” may arise from the acquittal of the
guilty no less than the conviction of the innocent.
State vs Md
Awal Fakir 56 DLR 647.
Sections 3 & 5–
Evaluation
of evidence of witnesses and conclusion from facts–On the face of direct
evidence of four eye–witnesses, the High Court Division acted wrongly in
acquitting the principal accused by entertaining doubts in mind as to the
place, time and occurrence.
State vs
Mohammad Kha 42 DLR (AD) 192.
Sections 3, 5 & 8–
Ordinarily
an accused has no obligation to account for the death for which he was placed
on trial, but the murder having taken place while the accused was living with
his deceased wife in the same house, he was under an obligation to explain how
his wife had met with her death.
Abul Kalam
Mollah vs State 51 DLR 544.
Sections 3 & 30–
Since the
confessional statement is not required to be taken on oath and taken in
presence of a co–accused and not tested by cross–examination it cannot be
considered as substantive evidence against the co–accused.
Mojibar vs State 51 DLR 507.
Sections 3 and 30–
Confessional
statement cannot be used against a co–accused without independent corroborative
evidence.
Abu Sayed vs
State 53 DLR 559.
Section 5–
Mere placing
no reliance upon confessional statement of the accused and non-examination of
the Magistrate who held TI Parade are no grounds for acquittal where the order
of conviction and sentence is based on other sufficient and reliable legal
evidence on record.
Abdul Hashem
(Md) @ Bachchu Fakir and others vs State 52 DLR (AD) 117.
Section 5–
Calling and
taking away of the victim by the appellant Billal and co-convict Saiful from
his residence half an hour before his murder, recovery of the body of the
victim, Billal’s offer of love and threat to the PW 2 Mokseda, and abscondence
of Billal immediately after the occurrence are circumstances to lead to the
conclusion that he abetted the murder.
Billal vs
State 52 DLR (AD) 143.
Section 5–
Even in case
of non–examination of the seizure list witness or if the seizure list witnesses
do not speak in terms of the prosecution case, the conviction cannot be set
aside only for this reason.
Moshfiqul Islam alias Bilu vs State 52 DLR 593.
Section 5–
It is
unfortunate that for not seizing the lungi of PW I the positive testimony of
this witness and other witnesses who spoke about the presence of PW I in the
occurrence have been discarded.
“Evidence
false in part is false in entirety” – As a matter of fact this maxim is
not supported by any authority and has got no relevance in the present time.
Mahmudul Islam alias Ratan vs State 53 DLR (AD) 1.
Section 5–
When a wife
met with an unnatural death while in custody of the husband and also while in
his house the husband is to explain under what circumstance the wife met with
her death.
Ilias Hussain (Md) vs State 54 DLR (AD) 78.
Section 5–
Mere relationship
by itself cannot be a ground for rejecting testimony of a witness unless it is
shown that the witness was biased and resorted to falsehood.
Nure Alam and others vs State 54 DLR 242.
Section 5–
There is no
reason to hold that the defence has been prejudiced for non-examination of the
investigation officer, although non-examination of the investigation officer in
a criminal case is usually viewed with disapproval.
Karam Ali vs State 54 DLR 378.
Section 5–
Non-examination
of independent witnesses, particularly some of the neighbors, raised a
presumption against the prosecution to the effect that had they been examined,
they would not have supported the prosecution case.
Nepoleon Khondker alias Lepu and another vs State 54 DLR 386.
Section 5–
In the
context of the existing enmity between the parties, it is wholly unsafe to rely
on the uncorroborated testimony of informant.
Altaf Hossain and ors vs State 54 DLR 464.
Section 5–
A close
relative who is a material witness cannot be regarded as an interested witness.
The term “interestedness” postulates that the witness must have some
direct interest in having the accused somehow or the other connected for some
animus or some other reasons.
State vs Moslem 55 DLR 116.
Section 5–
The murder
having taken place where the accused person was living with his wife in the
same house he was under an obligation to explain how his wife had met with her
death. In the absence of any explanation coming from his side it seems none
other than the husband was responsible for causing death in question.
Dulal Mia (Md) vs State 56 DLR 65.
Section 5–
If on
consideration of the entire evidence and materials on record it appears to the
Court that the prosecution case is doubtful, the benefit of doubt must be given
to the accused and he should be acquitted of the offence charged.
Shahidul Islam (Md) alias HM Shahid vs State 56 DLR 35.
Section 5–
Discrepancy
has to be distinguished from contradiction. Whereas contradiction in the
statement of the witness is fatal for the case, minor discrepancy or variance
in evidence will not make the prosecution case doubtful.
Shibu Pada Acharjee vs State 56 DLR 285.
Section 8–
The
deceptive conduct of accused petitioner to turn into a fugitive by jumping the
bail is a clear indication of his guilty conscience.
Babar Hossain vs State 2 DLR 326.
Section 8–
In view of
the evidence as to motive of the condemned prisoner, his previous attempt to
assault the victim, comes within the purview of section 8 of the Evidence Act
and this said conduct is relevant for determination of the issue of the case.
State vs Md Khosbar Ali 52 DLR 633.
Section 8–
Unless the
court is told what exact words were used by the accused persons it cannot act
on the inference supplied by the witnesses from what they have heard or not
heard.
Abul Khair and another vs State 55 DLR 437.
Section 8–
Accused
remained absconding with clear guilty knowledge about his overt act in the
occurrence resulting in the murder and as such his absconsion will create
adverse opinion against him.
Zakir Hossain and another vs State 55 DLR 137.
Section 8–
Abscondence
by itself does not prove any offence against any person unless such abscondence
is substantiated by evidence in favour of his guilt incompatible with his plea
of innocence.
Zahid Hossain @Paltu and others vs State 55 DLR 160.
Section 8–
Abscondence
of the condemned prisoner furnished strong corroboration to prosecution case
that he is the culprit.
State vs Moslem 55 DLR 116.
Section 8–
Absconsion
itself is not an incriminating matter inasmuch as even an innocent person
implicated in a serious crime sometimes absconds during the investigation to
avoid repression by the police.
Abul Kashem and others vs State 56 DLR 132.
Section 8–
Abscondence
sometimes may not be an incriminating circumstance for drawing inference of the
guilt of an accused person but, in the case in hand, long abscondence of the
accused–appellant is an important circumstance to fasten him.
Babul Sikder and others vs State represented by the DC 56 DLR 174.
Section 8–
Motive–Motive,
if proved, affords a key to scan the evidences of the case in its proper
perspective and motive proved indicates the high degree of probability and
provides a link in the chain to connect the accused with the offence.
State vs Abdul Hatem 56 DLR 431.
Sections 8 and 9–
Abscondence
of an accused person in some circumstances may not be an incriminating
circumstance against him in respect of his guilt but long abscondence is an
important circumstance against him and furnishes corroboration of the
prosecution case.
State vs Saiful Islam and anr 56 DLR 376.
Sections 8 & 106–
It was not
denied by the appellant that victim Shefali was his wife and living with him in
the same house just before her alleged missing. If that be so, he is under the
obligation to explain what has happened to Shefali who was with him before her
missing.
Abdul Majid vs State 55 DLR 486.
Section 9–
Long
abscondence and non-submission to the process of the court speaks a volume
against the accused persons and clearly suggest their involvement in the crime.
Abscondence of the accused persons furnished corroboration of the prosecution
case and evidence.
Al–Amin and 5 others vs State 51 DLR 154.
Section 9–
The non-holding
of the Test Identification Parade cannot affect the identification of the
accused Shamim Hossain by the victims at the time of trial and the statement
made by the witnesses are the legal and substantive evidence in the eye of law.
Al–Amin and 5 others vs State 51 DLR 154.
Section 9–
It was the
duty of appellant to follow the position of the case. No duty was cast upon
Tribunal to run after a fugitive to post him with day–to–day proceeding against
him.
Nizam Hazari vs State 53 DLR 475.
Section 9–
Abscondence
of accused is a relevant fact under section 9 of the Evidence Act and unless
accused explains his conduct abscondence may indicate his guilt.
Nizam Hazari vs State 53 DLR 475.
Section 9–
Abscondence
of an accused cannot be treated to be corroboration of the confessional
statement of another accused person so as to base thereon conviction of the
absconding accused.
Nizam Hazari vs State 53 DLR 475.
Section 9–
It is the
facts and circumstances of the case which decide whether abscondence is due to
any guilty knowledge or to any intention to avoid harassment by police.
Nizam Hazari vs State 53 DLR 475.
Section 13–
Document to
which a person was not a party may be admissible to show assertion of right.
Md Shahadat Hossain vs Kohiladdi Shaikh 37 DLR 126.
Section 13–
Existence of
any right or custom, such as any “transaction” creating any
right–Relevancy of–Section 13 provides that where the question is as to the
existence of any right or custom, certain facts are relevant, such as any ‘transaction’
by which right or custom in question was created, claimed, modified,
recognised, asserted or denied, and ‘particular instances’ in which the right
or custom was claimed, recognised or asserted.
Hazi Waziullah vs Additional Deputy Commissioner, Noakhali 41 DLR
(AD) 97.
Section 13–
A sale
certificate is not a title deed but it is only an evidence of title. It is not
incumbent upon the auction purchaser or his transferee to prove right to
propertyl only by proving the sale certificate–the auction sale can be proved
by any other evidence independent of the sale certificate.
Bazlur Rahman vs Sadu Mia 45 DLR 391.
Sections 13 and 43–
Evidentiary
value to the previous judgment in Writ Petition No. 682of1980 as to the status
of the petitioner in view of the provisions of section 43 read with section 13
of the Evidence Act not accorded–Effect of.
Dr Syed Matiur Rob vs Bangladesh 42 DLR (AD) 126.
Sections 13 and 43–
Previous
Judgment – Admissibility of–Not binding upon the respondent No. 4 and the
Government as the new issues raised in a review case had no occasion to be
considered in the previous judgment.
Dr Syed Matiur Rob vs Bangladesh 42 DLR (AD) 126.
Sections 13 and 43–
Whether
judgment which decreed the suit on a finding that there was an amicable
partition is admissible under sections 13 and 43 of the Evidence Act and may be
considered as evidence.
Hazi Waziullah vs ADC Revenue 41 DLR (ADJ 97.
Section 17–
‘Admission’
is no doubt a strong evidence against its maker but it is also open to him to
adduce evidence to show that it is not in fact an ‘admission’ but is the result
of bonafide mistake of fact.
Begum Khodeza Akhter vs Hajera Khatun 37 DLR (ADJ 212.
Section 17–
Admission–Use
of–Whether an admission made by a party in plaint, signed and verified by him,
may be used as evidence against him in other suits–Whether it is also open to
the party to show that the admission is to be regarded as conclusive evidence
and also to show that it is untrue.
AK Khan vs Basek Khan 40 DLR (AD) 114.
Section 17–
Under the
English Law a statement in a pleading sworn, or otherwise adopted by a party,
is admissible against him in other actions. In our law of evidence an admission
made by a party in a plaint is admissible in evidence against him but such
admission cannot be regarded as conclusive proof and it is open to the party to
show that it is untrue.
AK Khan vs Basek Khan 40 DLR (AD) 114.
Section 17–
Admission by
judgment Adverse finding in the judgment in an earlier suit dismissed on the ground
of maintainability cannot operate as res judicata. But the finding therein that
the defendant was admitted to be a tenant will operate as admission by
judgment.
Haragram Trust Board vs Dr Golam Mortuza Hossain 47 DLR 160.
Section 17–
Stray statement
made without the context does not constitute any admission by defendant on
extension of the time for performance.
Saroj Kanta Sarker and
others vs Seraj–ud–Dowla and others 56 DLR 39
Sections 17 & 145–
Admission–Since
the relationship of landlord and tenant between the plaintiff and the defendant
was never a fact in issue, the application of the defendant dated 12–1–66
(unconnected with the relationship) and his deposition in a different
proceeding could not be admitted into evidence as an admission suggesting an
inference as to any fact in issue. The alleged admissions were not set out in
the plaint. Admission can be explained and the maker of the same must have an
opportunity to explain them.
Abdur Rabban vs Aminul Hoque Sowdagar 43 DLR (AD) 19.
Section 18–
Admission or
concession by lawyer when not binding on his client–s– It does not appear from
the judgment of the appellate Court below that the respondent’s lawyer placed
reasoning appearing in the trial Court judgment before the lower appellate
Court. Under such a circumstance Court is not prepared to accept lawyer’s
concession as an admission of facts of abandonment of an issue.
Sajia Khatun vs Amena Khatun 43 DLR (ADJ 206.
Section 19–
Admission by
person whose position must be proved as against party to suit – A qualified
statement cannot be used against the maker.
Haque Brothers vs Shamsul Haque 39 DLR290.
Section 23–
The legal
position of a letter written by the appellant with the words “without
prejudice” is to be understood with reference to section 23 of the
Evidence Act which reads as follows:
“In
civil cases no admission is relevant if it is made either upon an express
condition that evidence of it is not to be given, or under the circumstances
from which the court can infer that the parties agreed together that evidence
of it should not be given.”
Messrs Haque Brothers (Carbide) Ltd vs Bangladesh Shilpa Rin
Sangstha 37 DLR (AD) 54.
Section 23–
When a
letter is written mentioning the expression ‘without prejudice,’ it means the
terms made in it may be accepted by the person written to. If not accepted, the
matter ends there. Exception when a letter cannot be referred to for collateral
matters.
Messrs Haque Brother (Carbide) Ltd vs Bangladesh Shilpa Rin
Sangstha 37 DLR (AD) 54.
Section 24–
Extra–judicial
confessions are not usually considered with favour but it does not mean that
such a confession coming from a person who has no reason to state falsely and
to whom it is made in the circumstances which tend to support his statement
should not be believed.
Syed Ahmed vs Abdul Khaleque and others 51 DLR43.
Section 24–
A conviction
can also be rested on extra–judicial confession subject of course to the fact
that such statements are corroborated by other materials on record.
State vs Moslem 55 DLR 116.
Section 24–
Extra–judicial
confession such confession made before a person in authority cannot be relied
upon as evidence without any independent corroboration.
Mobarak Ali Gazi (Md) vs State 55 DLR 325.
Section 25–
The record
of one proceeding is not to be treated as a part of the record of another
proceeding and the record of each proceeding should be self–contained and
complete.
State vs Ershad Ali Sikder and others 56 DLR 185.
Section 27–
It is not
the distance by which the place of occurrence is shifted is material but it is
the prosecution case which has been different because of shifting of the place
of occurrence and this has cast a suspicion on the prosecution case.
Abul Kashem and others vs State 56 DLR 132.
Section 27–
If after an
examination of the whole evidence, the Court is of opinion that there is a
reasonable possibility that the defence put forward by the accused might be
true, such a view reacts on the whole prosecution case. In these circumstances,
the accused is entitled to benefit of doubt, not as a matter of grace, but as
of right.
Abul Kashem and others vs State 56 DLR 132.
Section 30–
No statement
that contains self-exculpatory matter can amount to confessional statement if
the exculpatory statement is of some fact which if proved would negative the
offence confessed.
State vs Md Bachchu Miah @ Abdul Mannan and 5 others 51 DLR 355.
Section 30–
If
confession falls short of plenary acknowledgment of guilt it would not be a
confession even though the statement contained some incriminating fact.
Jabed Ali (Md) alias Jabed Ali and others vs State 51 DLR 397.
Section 30–
It is very
risky to rely on the statements of the two confessing accused so as to convict
accused Mohammad Ali as there is absence of any corroborative evidence to
identify Mohammad as Mohammad Ali.
Mohammad Ali vs State 52 DLR 245.
Section 30–
The
confessional statement of an accused can very well be the basis of conviction
provided the same is true and voluntary.
Hasmat Ali vs State 53 DLR 169.
Section 30–
Prolonged
police custody immediately before recording of the confessional statement is
sufficient, if not otherwise properly explained, to render it as involuntary.
Hasmat Ali vs State 53 DLR 169.
Section 30–
Retraction
is immaterial, if the confession of the accused is found to be voluntary and
true.
Meghna Petroleum Marketing Co Ltd and others vs MF Ltd and others
53 DLR 368.
Section 30–
Conviction
can be based solely on confession if found true and voluntary, though retracted
subsequently.
Meghna Petroleum Marketing Co Ltd and others vs MF Limited and
others 53 DLR 368.
Section 30–
If the
disputed confession is partly exculpatory and partly inculpatory, it is a
confession in the eye of law.
Meghna Petroleum Marketing Co Ltd and others vs MF Ltd and others
53 DLR 368.
Section 30–
The
conviction cannot be based solely on the basis of confessional statement of a
co–accused unless it is corroborated by some other independent evidence.
State vs Lieutenant Colonel Syed Farook Rahman 53 DLR 287.
Section 30–
The alleged
solitary confinement was after the recording of the confessional statement and
does not affect the confession as involuntary.
State vs Lieutenant Colonel Syed Farook Rahman 53 DLR 287.
Section 30–
Confession
of a co-accused cannot by itself be the basis of conviction of another
co–accused nor even against himself if the same is not substantiated by
satisfactory evidence proving the guilt of its maker.
Zahid Hossain@ Paltu and others vs State 55 DLR 160.
Section 30–
Conviction
can be based on judicial confession if it is established that it is true and
voluntary and is substantiated by other evidences, whether direct or
circumstantial and materials on record.
State vs Moslem 55 DLR 116.
Section 30–
Conviction
can be based on the sole confession of the accused although retracted
subsequently if it is found to be true and voluntary.
Zakir Hossain and another vs State 55 DLR 137.
Section 30–
Conviction
of the confessing accused based on a retracted confession even if
uncorroborated cannot be said to be illegal if the court believes that it is
true and voluntary.
State vs Rajiqul Islam 55 DLR 61.
Section 30–
The trial
Court first has to find the confessional statement to be true and voluntary and
then only may place reliance on it.
State vs Rajiqul Islam 55 DLR 61.
Section 30–
The confession of one co-accused cannot be
used for corroborating the confession of another co–accused as both are tainted
evidence, much more so when they are retracted, for, then the maker himself
repudiates the correctness of his earlier statements–the confession of a
co–accused could not be sustained and further the confession of one co–accused
could not be said to be corroborated by the confession of another co–accused.
Rezaul Karim (Md) alias Rezaul Alam Rickshawa vs State 55 DLR 382.
Section 30–
Confession
of an accused is not a substantive piece of evidence against the coaccused, so
such evidence alone without substantive corroborative evidence cannot form the
basis of conviction of a co–accused.
Rezaul Karim (Md) alias Rezaul Alam Rickshawa vs State 55 DLR 382.
Section 30–
Confession
of a co–accused can be taken into consideration and on the strength of that
confession another co–accused can be convicted provided the said confession is
corroborated by any other evidence, either direct and circumstantial.
State vs Mir Hossain alias Mira and others 56 DLR 124.