Evidence Act
[I of 1872]
Section 31–
Admissions
are not conclusive proof of the matters admitted and the party is at liberty to
prove that these were made under mistake of law or fact or that these were
untrue or were made under threat, inducement or fraud.
Sonali Bank vs. Hare Krishna Das and others 49 DLR 282.
Section 32–
It is not
required for a dying declaration that the maker should be in expectation of his
immediate death nor it is restricted to homicidal death.
Humayun Matubbar vs State 51 DLR 433.
Section 32–
There is
nothing in the evidence that after recording the dying declaration in English
any person present at the time of recording of dying declaration translated the
same in Bengali and that explained the statement to the maker and that the
maker admitted the correctness of the same. This being the position the
correctness of the dying declaration is very much doubtful.
State vs Babul Hossain 52 DLR 400.
Section 32–
To make the
dying declaration the basis for sentencing an accused to death or any other
sentence the same is required to be found reliable.
State vs Babul Hossain 52 DLR 400.
Section 32–
An injured
person under the impediment of death, while making oral or written dying
declaration, will not falsely implicate even the persons inimical to him.
Milon @ Shahabuddin Ahmed vs State 53 DLR 464.
Section 32–
The first
information report is a matter of special importance when its maker died
shortly after he made it. The FIR is clearly admissible in evidence. This may
also be treated as a dying declaration in view of the fact that victim himself
dictated the ejahar at a time when his condition was really critical.
State vs
Rashid Ahmed & others 54 DLR 333.
Section 32–
If the Court
can unhesitatingly accept it and act upon it, a dying declaration by itself can
form the basis of conviction under given circumstances.
State vs Rashid
Ahmed & others 54 DLR 333.
Section 32–
Identification
by torch light or hurricane light, at dead of night is not sufficient unless
the distance is in close proximity and when there is a background of enmity and
the witnesses are chance witnesses and not natural witnessess and natural and
independent witnesses were not produced, it is unsafe to rely on the chance
witnesses to connect the accused with the crime.
Nepaleon Khondker alias Lepu and another vs State 54 DLR 386.
Section 32–
The dying declaration
of victim has not been reduced to writing, yet when it has been proved by
overwhelming ocular evidence to prove the guilt of accused appellant, the dying
declaration of victim itself stands out as a strong piece of evidence proving
the guilt of the appellant.
Salim (Md) vs State 54 DLR 359.
Section 32–
When a dying
declaration of the victim is stated by the witnesses and the declaration is not
taken exactly in the own words of the deceased, but is merely a note of the
substance of what had stated, it cannot be safely accepted as a sufficient
basis for conviction.
State vs Kabel Molla and others 55 DLR 108.
Section 32–
A dying
declaration enjoins almost a sacrosanct status as a piece of evidence as it
comes from the mouth of a person who is about to die and at that stage he is
nor likely to make a false statement. Court’s duty is to scrutinize the
statement and to separate grain from the chaff of the said statement.
Babul Sikder
and others vs State represented by the DC 56 DLR 174.
Section 32–
Dying
declaration– If the dying declaration is acceptable as true conviction can be
based upon the dying declaration alone in the absence of corroborative evidence
on record.
State vs
Abdul Hatem 56 DLR 431.
Section 32(1)–
Unless the
dying declaration as compared to other evidence appears to be true, it cannot
by itself form the basis of conviction of the accused.
State vs
Tota Mia 51 DLR 244.
Section 33–
Relevancy of
evidence by witness not available for cross-examination. There is no provision
in the Evidence Act that the evidence of a witness which is admissible at the
time he gave it should become inadmissible for the reason that he could not be
cross–examined for some unavoidable reason.
Chowdhury
Miah vs Dhanindra Kumar Shil 45 DLR 110.
Section 33–
A case of
prejudice likely to be suffered by an accused must depend on the facts of the
case and no universal straitjacket formula would be laid down that
non–examination of investigating officer per se vitiates a criminal trial.
Babul Sikder
and others vs State represented by the DC 56 DLR 174.
Section 34–
It was
incumbent on the Courts below to properly scrutinise the material circumstances
for determining whether the chain of circumstantial evidence is so complete as
to lead to the only conclusion of the appellant’s guilt.
Osman Gani
vs State 54 DLR (AD) 34.
Section 34–
The
exception taken by the Counsel for non–examination of all or reasonable number
of witnesses cited in the prosecution report is of no merit since it is for the
prosecution to decide amongst the cited witnesses how many it will examine for
establishing its case against the accused persons.
Zahed Ali
Foreman (Driver) and others vs State 56 DLR (AD) 29.
Section 35–
School
Register, Admit Cards and Board’s Certificate are public documents and
admissible in evidence under section 35, Evidence Act. Their evidentiary value
as regards age of a boy not treated as being correct tendency being to
understatement of age.
Abul Hashem
vs Mobarak Uddin 38 DLR 145.
Section 35–
Lower
Appellate Court’s finding as a final court of fact about age as given in the
Admit Card that the boy’s Admit Card gives understatement of his age the High
Court Division accepts that as binding on it.
Abul Hashem
vs Mobarak Uddin 38 DLR 145.
Section 35–
A seizure
list, a post mortem report, a confessional statement recorded under section 164
of the CrPC or any statement of any person recorded under section 161 of the
Code not being in public or other official book, register or record, they are
not admissible under section 35 of the Evidence Act.
State vs
Ershad Ali Sikder and others 56 DLR 185.
Sections 40, 41, 42, 43 and 44–
“Relevant”
means and relates to admissibility onlyEvidentiary value of a judgment which
is relevant is different from the question whether it is admissible in
evidence.
Hazi
Waziullah vs Additional Deputy Commissioner, Noakhali 41 DLR (AD) 97.
Section 43–
Section 43
of the Evidence Act is attracted to the present case. Under section 40 a
previous judgment, order or decree is relevant to bar a second suit, that is,
when such a judgment operates as res judicata under section 11 CPC. Under
section 41 a final judgment, order or decree of a competent court in the
exercise of probate, matrimonial, admiralty or insolvency jurisdiction, is not
only relevant but also is conclusive both against the parties thereto as well
as against the rest of the world, that is, it is a judgment in rem as
distinguished from a judgment in personam. Under section 42 a judgment is
relevant if it relates to any matter of public nature but it is not a
conclusive proof of the fact it states. None of these sections, 40, 41 and 42,
obviously is attracted to the instant case. It is section 43 which may be
attracted to the instant case.
Hazi
Waziullah vs ADC Revenue 41 DLR (AD) 97.
Section 44–
Court’s
judgement, burden of- When the petitioner has produced a judgement and decree,
the burden is on the adverse party to show that the court was not competent to
pass the decree.
Rahela
Khatun vs Court of Settlement 45 DLR 5.
Section 44–
Fraud–When a
judgement is set up by one party as a bar to the claim of the other, the latter
can show that the same was delivered without jurisdiction or was obtained by
fraud. It is not necessary for him to have the judgement set aside by a
separate suit.
Abdul Gani
Khan vs Shamser Ali 45 DLR 349.
Section 45–
Neither the
finger prints forwarded to the expert were taken as per order nor in presence
of the Court. Under the facts and circumstances conviction based solely on expert
report is liable to be set aside.
Sabha Rani
Biswas vs State and ors 52 DLR 293.
Section 45–
Medical
evidence is only corroborative in nature, the ocular evidence of the
eye–witness which substantially corroborates the major injuries on the person
of the deceased be accepted.
State vs Md
Shamim alias Shamim Sikder and ors 53 DLR 439.
Section 45–
Where the
direct evidence is not supported by expert evidence, and evidence is wanting in
the most material part of prosecution case it would be difficult to convict the
accused on the basis of such evidence.
Nepaleon
Khondker alias Lepu and another vs State 54 DLR 386.
Section 45–
Medical
evidence–The material obtained on the swab must be preserved and forwarded for
examination by the expert for the presence of human spermatozoa which is a
positive sign of rape. It seems that the doctor examined the external part of
the injuries of vagina and failed to make detail dissection so as to ascertain
to prove the actual occurrence of rape.
State vs
Harish 54 DLR 473.
Section 45–
The evidence
of an expert cannot alone be treated and used to form basis to find an accused
guilty and to form basis of his conviction independent of the substantive
evidence of the PWs in the case.
Kalu Sheikh
alias Kalam Sheikh and others vs State 54 DLR 502.
Sections 45 & 73–
There are
different modes of proving the signature or hand writing on documents but
section 45 is one of them and in the instant case the court decided to have
opinion of the expert and there is no hard and fast rule for the court as to
which mode it should follow.
Dr Wakil
Ahmed and ors vs Sufia Khatun and ors 53 DLR 214.
Sections 45 & 73–
Comparison
of disputed signature /LTI cannot be done by the expert with the said
registered document which is not admitted or proved to the satisfaction of the
court.
Dinesh
Chandra Deb vs Dulal Chandra Karmaker and others 53 DLR 259.
Sections 45 & 73–
Examination
of LTI – It is true Court itself can compare any signature or LTI of any
concerned person himself under section 73 Evidence Act but it is better to have
an expert’s opinion also, particularly in a case of LTI.
Sk Abul
Qasem vs Mayez Uddin Mondal 45 DLR 169.
Sections 45 & 73–
Since by
scientific process or method examination of signature, particularly thumb
impression, has developed much, it is safe and sound to leave the matter of
such examination to the expert or to the person specialized in the examination.
Serajuddin
Ahmed and others vs AKM Saiful Alam and others 56 DLR (AD) 41.
Sections 45 and 73–
It is always
open to the Court to decide as to whether it should itself compare the
questioned signature or handwriting to come to a decision or send the same for
an expert opinion.
Monju Mia
and others vs Shira} Mia and others 56 DLR 264.
Sections 45 & 115–
The
comparison of the LTI by the court is its discretion and it does not depend on
parties’ prayer alone nor can any court be compelled to take recourse to
particular mode of proof of handwriting.
Dr Wakil
Ahmed and ors vs Sufia Khatun and ors 53 DLR 214.
Section 47–
Opinion as
to handwriting– the evidence of PW s 1 & 5 as to the writings in Exts 1-3
being not believable, the documents were not legally proved as the writings
thereof could not be proved.
Noor
Mohammad Khan vs Bangladesh 42 DLR 434.
Section 56–
The
plaintiffs having been successful in proving that the original kabalas were
lost it cannot be argued that inadmissible evidences were relied upon as the
courts below found that secondary evidence was given of those original documents.
Abdul
Khaleque Mollah vs ABM Zakaria and another 51 DLR (AD) 78.
Section 59–
Reliance on
oral evidence of the interested witnesses in utter disregard of the principles
of law of evidence deprecated.
Abani Mohan
Saha vs Asstt. Custodian 39 DLR (AD) 223.
Section 60–
There is no
evidence that the victim made any statement as regard the incident to anybody
other than PW 8. So the claim of PW 4 that victim stated to him about the
incident of setting fire in her body by the condemned convicts can hardly be
considered reliable.
State vs
Babul Hossain 52 DLR 400.
Section 60–
PW 1 has not
implicated the accused with any overt act on the basis of charge but reiterated
the statement as to derivative knowledge of involvement as mentioned in the FIR
and in the charge–sheet which is inadmissible evidence.
State vs
Lieutenant Colonel Syed Farook Rahman 53 DLR 287.
Section 61–
Secondary
evidence when a deed is admitted to be lost. In ordinary cases, if the witness
in whose custody the deed should be, deposed to its loss, unless there is some
motive suggested for his being untruthful, his evidence would be accepted as
sufficient to let in secondary evidence of the deed.
Abani Mohan
Shaha vs Asstt. Custodian 39 DLR (AD) 223.
Sections 61, 67 & 103–
Muslim
Marriage is a socio–religious contract between a man and a woman and as such
signatures of the parties in the Kabinnama are essential for proving marriage.
No amount of oral evidence can cure the deficiency and no amount of oral
evidence is sufficient to prove marriage when the plaintiff fails to prove the
Kabinnama according to law.
Khodeja
Begum and others vs Md Sadeq Sarkar 50 DLR 181.
Section 62–
A firisti is
no evidence of the contents of the documents in support of relationship of
landlord and tenant.
Chandan
Mondal@ Kushal Nath Mondal andothers vs Abdus Samad Talukder & others 51
DLR (AD) 150.
Sections 62 & 63–
Primary
Evidence – 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.
Aftab Meah
vs Bazal Ahmed 45 DLR 15.
Section 63–
Photostat
copies are admissible in evidence– The minutes recorded in the order book were
admitted in evidence after dispensing with their formal proof.
Mahajak
Shipping Co Ltd vs MV Sagar 39 DLR 425.
Section 63–
The
defendants have not attempted to dislodge the evidence of the plaintiff which
remained unchallenged.
Mahajak
Shipping Co Ltd vs MV Sagar 39 DLR 425.
Section 63–
A party
producing secondary evidence ofa 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.
Sova Rani
Guha alias Sova Rani Gupta vs Abdul Awai Mia and others 47 DLR (AD) 45.
Section 63(2)–
The
acceptance of the secondary evidence by the Subordinate Judge and his decision
in the ‘suit relying upon such non-admissible evidence are errors of law
apparent on the face of the record.
Government
of Bangladesh vs Mirpur Semipucca (Tin–shed) Kalayan Samity & others 54
DLR 364.
Sections 63(2), 65 & 66–
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.
Government
of Bangladesh vs Mirpur Semipucca (Tin–shed) Kalayan Samity & others 54
DLR 364.
Section 64–
Admission of
private documents as evidence–Even if no objection had been taken to formal
admission of the rent receipts, the plaintiff having relied upon them for his
case was bound to prove their genuineness which would be decided by the court
in the light of the facts and circumstances of the case.
Md
Lashimuddin Kanchan vs Md Ali Ashraf 42 DLR (AD) 289.
Sections 64 & 65–
Parties
having not raised objection against deciding the appeal on the basis of
documents already on record, .their admission into evidence is a mere formality
and there is no illegality in the judgment passed relying on such documents.
Lal Chand
Sardar vs Abdul Huq Howladar and others 47 DLR 401.
Section 65–
Secondary
evidence of a document is admissible in evidence.
Hazi
Waziullah vs ADC 41 DLR (AD) 97.
Section 65–
Whether a
party producing a document is exempted from explaining in the course of
recording evidence why the original was not produced even though no objection
was raised when it was produced.
Hazi
Waziullah vs ADC 41 DLR (AD) 97.
Section 65–
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.
Osena Begum
alias Babuler Ma and another vs State 55 DLR 299.
Section 65–
An omission
to object in respect of an inadmissible evidence would not make it admissible.
Reliance in this regard may be made to the decision in the case of Miller vs
Babu Madho Das 23 IA 106.
National
Bank Ltd and others vs Habib Bank Ltd and others 56 DLR 15.
Section 66–
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.
Joynal
Abedin & others vs Mafizur Rahman 44 DLR (AD) 162.
Sections 67 and 68–
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.
Kamaluddin
and others vs Md Abdul Aziz and others 56 DLR 485.
Section 68–
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.
Haji Sk. Md
Lutfur Rahman vs Chairman, Court of Settlement 45 DLR (AD) 136.
Section 73–
Court itself
competent to compare a disputed hand–writing or signature of a person with his
admitted writing or signature to come to a conclusion.
Abdul Main
Chowdhury vs Chapala Rani 37 DLR 205.
Section 73–
Comparison
of signature– when direction for comparison is not called for the case is one
for eviction and not for determination of title between the competing parties.
Profulla Chandra who is sought to be summoned for his specimen signature was
not present before the Court either as a witness or in any other capacity. In
the facts of the case the question of directing him to give his specimen
signature does not arise.
BIWTC vs
Nazma Flour Mills Ltd 43 DLR (AD) 105.
Section 73–
The court at
the time of deciding a case may compare the disputed handwriting and signature
with the admitted hand-writing 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.
Nowazullah vs
Waz Khatun 45 DLR 279.
Section 73–
When a
document is produced by a party and the signature appearing therein is proved
and subsequently the person concerned denies the signature, it is the duty of
the Court to compare the same with his other admitted signatures on record.
Haragram
Trust Board vs. Dr. Golam Mortuza Hossain 47 DLR 160.
Section 73–
The trial
Court committed wrong in discarding the Will on mere comparison of the three
signatures by naked eyes without any opinion by any expert. Pratik Bandhu Roy
and others vs.
Alok Bandhu
Roy and others 49 DLR 241.
Section 73–
The section
permits the Court to make a comparison of signature or writings and so adoption
of such a method cannot be termed as hazardous or dangerous.
Ishaque (Md)
vs Ekramul Haque Chowdhury and others 54 DLR (AD) 26.
Section 73–
The Court is
not bound to refer a document to the handwriting expert when it can itself note
the dissimilarity in LTIs and handwriting.
Majizul Hoq
Bebu (Md) vs Majida Begum and others 54 DLR 219.
Section 73–
In view of
the provision of section 107(2) of the Code the High Court Division was
competent to compare the signature of the defendant in the ‘bainapatra’ with
his available signatures and, as such, was in error in sending back the case
for the said purpose to the trial Court.
Aftab Ali
(Captain Retired) vs SM Kutubuddin 56 DLR (AD) 117.
Sections 73 & 45–
Examination
of LTI– It is true Court itself can compare any signature or LTI of any
concerned person himself under section 73 Evidence Act but it is better to have
an expert’s opinion also, particularly in a case of LTI.
Sk Abul
Qasem vs Mayez Uddin Mondal 45 DLR 169.
Section 74–
Plaint and
written statements are public documents under section 74.
Reazuddin vs
Azimuddin 39 DLR 228.
Section 74 & 114(e)–
Objection as
to admissibility of evidence is to be taken at the first instance. In the
instant case no .such objection was raised against the Commissioner’s report in
question which can also be relied upon as the same is an official document and
was prepared in due course.
Abdul Quader
Chowdhury vs Sayedul Hoque 43 DLR 568.
Section 79–
A registered
document carries presumption of correctness of the endorsement made therein–One
who disputes this presumption is required to dislodge the correctness of the
endorsement.
Shishir
Kanti Pal and others vs Nur Muhammad and others 55 DLR (AD) 39.
Sections 79 & 114(e)–
The
Ekrarnama is a registered deed. So there arises under sections 59 and 60 of the
Registration Act read with sections 79 and 114 (illustration e) of the Evidence
Act a presumption that it was duly presented and registered.
Wahida Begum
vs Tajul Islam 52 DLR 491.
Section 80–
It was
injudicious to rely upon confession without calling the Magistrate as a
witness. The Court is required to see not only that the forms under sections
164 and 264 CrPC were complied with but the substance underneath the law
equally adhered to.
Bimal
Chandra Das alias Vim and 3 others vs State 51 DLR 466.
Section 80–
In the
attending facts and circumstances of the case when the veracity of the
confessional statement is questionable, the same enjoys no presumption of
correctness under section 80 of the Evidence Act.
Belal alias
Bellal and 2 others vs State 54 DLR 80.
Section 80–
High Court
Division wrongly applied the provisions of section 80 to admit into evidence a
statement of a witness recorded under section 164 during investigation stage
and not in a judicial proceeding.
Hossain@Foran
Miah and others vs State 56 DLR (AD) 213.