Fundamental Rules of Evidence

Before undertaking an examination of the various provisions contained in the draft “Law of Evidence Ordinance”, it will be useful to make a few observations  in  respect of the  scope and  nature of the Law of Evidence. The object of all legal proceedings is to determine the rights and liabilities of the parties under some substantive law,  which are based on certain facts relevant thereto. The principal aim of the  Law of Evidence is to prescribe legal principles to be followed by the Courts while ascertaining the proof of such facts and applying the provisions of substantive laws in order to decide the cases before them correctly. The Rules of Evidence are, therefore, procedural in nature and apply practically to all kinds of judicial proceedings. These rules can roughly be divided into two parts; one part comprises rules for the measurement or determination of the probative force of evidence and the other includes  rules determining the modes and conditions of production of evidence. The former deals with the effect of evidence when produced and the latter with the manner in which it is to be produced. In order to assess the merits of the proposed draft “Evidence Ordinance” it is absolutely necessary to examine it in comparison with the existing Evidence  Act of  1872.

The Evaluation of Evidence

This is what the burden and standard of proof are all about. The general rule is that the party initiating proceedings, and seeking to establish liability, bears the legal burden of persuading the court of his allegations. Sometimes, for policy reasons, the Law of Evidence reverses the burden of proof. Thus the defence and not the prosecution in a criminal trial has the burden of proving insanity. The Law of Evidence may go half-way in this direction by shifting the evidential burden of proof – the obligation to come forward with some evidence before the issue will be considered by the court – but not the legal burden of proof.   The standard of proof tells us to what degree the evidence which is advanced by a party bearing the legal burden of proof must be persuasive. When the prosecution has the burden of proof in a criminal trial, which it has on most issues, it must prove the facts it alleges beyond reasonable doubt.

When Evidential Poof lies upon Parties

The evidential burden is not strictly a burden of proof at all. It is best seen as a rule of common sense which says that, there must be some evidence for a particular issue to become a live one in order to be fit for the jury to consider it. It is sometimes said that an evidential burden is on a party to adduce some evidence to support a particular issue. This seems to be confusing and misleading, therefore, to call the evidential burden a burden of proof: it can be discharged by the production of the evidence which has short of proof. The burden is discharged when there is sufficient evidence to justify, as a possibility, becomes favored by the tribunal of fact. For example, in criminal trial where the prosecution bears the evidential burden on a certain issue, it must adduce sufficient evidence so as to prevent the judge from withdrawing the issue from the jury. However when the evidential burden is discharged, it does not necessarily mean it will succeed on the issue on question. The accused will not necessarily lose on that issue, even if he adduces no evidence in rebuttal, although if he takes that course, it is clearly risky.

For example according to section 68 -. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied .

Sole Confessional Statement of Accused under Bangladesh Evidence Act

The confessional statement, not being a mere statement of the occurrence, is the direct and specific admission of the guilt or admission, in substance, of all the facts constituting the offence, made by the confessing accused voluntarily giving a true statement of the occurrence implicating himself, sometimes other co-accused, as being involved in commission of the offence. A self-exculpatory statement or, a statement in which the maker denies his guilt is no confession.

Confessional statement alone can form the basis of conviction against its maker and, in appropriate cases, it lends assurance to the other substantive evidence as against other co-accused tried jointly for the same offence. It is, therefore, of great importance that the recording Magistrate should be well acquainted with the procedure and principles governing recording of confessional statement and, on the other hand, the trying Magistrates and the Judges, whenever they deal with the confessional statement, must apply their judicial mind with analytical insight and it is their duty to evaluate the confessional statement in accordance with the established norms of appreciation of the confessional statement, both judicial and extra judicial, to base upon it in a particular case.

Types of confessional statements: Confessional statements are of two kinds- Judicial Confession and Extra-Judicial Confession. For the purpose of evaluation, confessions are termed  as

  1. a) Inculpatory Confession,
  2. b) Exculpatory Confession,
  3. c) Voluntary/ Involuntary Confession,
  4. d) Confession containing True/ Partly True/ Partly False Statement,
  5. e) Voluntary but not true confession.
  6. f) Retracted Confession (meaning thereby submitting petition for retraction or challenging its voluntary character during examination under section 342, Cr.P.C.),

A judicial confession is made to and recorded by a competent Magistrate in accordance with the provisions of sections 164 and 364 of the Code of Criminal Procedure. The extra judicial confession may be of two categories- one is made to any person or group of persons other than Magistrate or police and another is made to the police in the form of information leading to recovery of some weapon or article of offence etc. (section 27of the Evidence Act).Laws and principles governing recording of confessional statement:

Sections 164 and 364 of the Code of Criminal Procedure provide how the confession should be recorded and signed. Sections 24 to 30 of the Evidence Act deal with admissibility and inadmissibility of confessional statement. Also in a plethora of judicial pronouncements the principles have been laid down for governing the recording of confessional statement, its admissibility and use as evidence and the norms of appreciation as to its reliability and forming the basis of conviction .