LAW OF EVIDENCE

The law of evidence, also known as the rules of evidence, encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of fact in reaching its decision. The trier of fact is a judge in bench trials, or the jury in any cases involving a jury.[1] The law of evidence is also concerned with the quantum (amount), quality, and type of proof needed to prevail in litigation. The rules vary depending upon whether the venue is a criminal court, civil court, or family court, and they vary by jurisdiction.

The quantum of evidence is the amount of evidence needed; the quality of proof is how reliable such evidence should be considered. Important rules that govern admissibility concern hearsay, authentication, relevance, privilege, witnesses, opinions, expert testimony, identification and rules of physical evidence. There are various standards of evidence or standards showing how strong the evidence must be to meet the legal burden of proof in a given situation, ranging from reasonable suspicion to preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt.

There are several types of evidence, depending on the form or source. Evidence governs the use of testimony (e.g., oral or written statements, such as an affidavit), exhibits (e.g., physical objects), documentary material, or demonstrative evidence, which are admissible (i.e., allowed to be considered by the trier of fact, such as jury) in a judicial or administrative proceeding (e.g., a court of law).

When a dispute, whether relating to a civil or criminal matter, reaches the court there will always be a number of issues which one party will have to prove in order to persuade the court to find in his or her favour. The law must ensure certain guidelines are set out in order to ensure that evidence presented to the court can be regarded as trustworthy.

The term “law” is used in different senses. In the plain sense, it means any rule, regulation or canon, a dogma or a norm to which the human actions are required to conform. The entire corpus juris (body of laws) is broadly classified into two categories:

  • Substantive laws, and,
  • Adjective laws.

The law of evidence doesn’t come under the purview of substantive or procedural law, but under ‘adjective law’, which defines the pleading and procedure via which substantive laws are brought into practice. It is the machinery by which substantive laws are set and kept in motion. So it can be said that the law of evidence deals with rights, as well as, procedures.

The general meaning of the term “evidence” is “the available body of facts or information indicating whether a belief or proposition is true or valid”. But, as per the interpretation of Section 3 of the Indian Evidence Act, 1872, evidence means and includes:

  • All statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
  • All documents [including electronics record] produced for the inspection of the court;

Such documents are called ‘documentary evidence.’

A court needs to accept facts as true in order to make decisions about the rights, duties and liabilities of the parties. A court will accept a fact as true when it is proved by one of the parties. The law of evidence is about the rules that govern the method of proving facts in court. According to Salmond  -One fact is evidence of another when it tends in any degree to render the existence of that other probable. The quality by virtue of which it has such an effect may be called its “probative force”, and evidence may therefore be defined as any fact which possesses such force.” The law of evidence is adjectival. This means that it does not concern itself with the substantive rights, remedies or entitlements of parties. It rather deals with how courts go about establishing those things. In this regard it is similar to the laws of civil and criminal procedure that are also adjectival in nature. It is not substantive law.

Classification of Evidence

To prove something, one must show evidence. Evidence makes us determine the reality about a certain fact whether it is true or not. Evidence is which tends to prove or disapprove something. There are different classifications of evidence namely; the Direct Evidence, the Indirect or Circumstantial Evidence, Real Evidence, Personal Evidence, Original Evidence and Unoriginal Evidence or Hearsay Evidence.  Though the Evidence  has been classified by the test-writers under five heads :

a)Direct or indirect which is known as circumstantial evidence

  1. b) Real or personal &
  2. c) Original or unoriginal

d)Oral or documentary evidence &

  1. e) Primary or Secondary evidence

Direct evidence

Direct evidence is the evidence such as those testimonies made by some individuals. The one who made the testimony speaks from his or her experience or personal knowledge with regards to the subject matter. The direct evidence declares that a certain fact exists.

Indirect or circumstantial evidence

Indirect or circumstantial evidence is the evidence that requires an inference to connect to a conclusion or fact. It allows a trier of fact in order to deduce a fact exists. The real evidence is the evidence that is presented directly to the one that will make the judgment; maybe through the different senses. One example of this is the injury that was being committed as being shown. Personal evidence is the evidence that is afforded by human agent. It could either be in the way of discourse or in the way of voluntary signs that is made to be able to communicate thought. Original evidence is the evidence that possesses an independent force of probability on its own. Unoriginal or hearsay evidence is the evidence made by a person who says some fact base upon the information that he she acquired from the others.

The evidence can be tested by the quality of the evidence itself and by the sources of the evidence. In testing the evidence by its quality, it should be asked if the evidence is consistent with the human nature as well as the human experience; if the evidence is consistent with known facts; if the evidence is consistent with itself; if the evidence passed the “hearsay test” and if the evidence is a kind that is exceptionally valuable. In testing the evidence by its source, the ordinary fact witnesses should be tested as well as the sources of expert evidence. Evidences should be checked carefully since evidence can bring the verdict whether a certain thing is true or not. It should be remembered that there are saying that says” Figures does not lie but liars do figure”. In other words, one might fabricate evidence against someone else; the reason why every evidence should be properly checked.

2.4 Historical Background of the Evidence Act 1872     

Section 1 of the Evidence Act,1872 runs this Act may called the Evidence Act, 1872.It extends to the whole of Bangladesh & applies to all judicial proceedings in on before any court including courts material, other than court material convened under Army Act 1952, the Naval Discipline Ordinance 1961 or the Air Force Act 1953.Though in ancient times when there was  no law in evidence ,there were trials by battle where the contestants in litigation fought it out in battle , in the hope that would interfere on the side of the right  .The  Evidence Act, originally passed by the British parliament in 1872, contains a set of rules and allied issues governing admissibility of any evidence in the courts of law. The enactment and adoption of the Evidence Act was a path-breaking judicial measure introduced in British India, which changed the entire system of concepts pertaining to admissibility of evidences in the courts of law. Up to that point of time, the rules of evidences were based on the traditional legal systems of different social groups and communities of British India and were different for different persons depending on his or her caste, religious faith and social position.The Evidence Act of 1872 is mainly based upon the firm work by Sir James Fitz James Stephen, who could be called the founding father of this comprehensive piece of legislation. The Evidence Act, identified as Act no. 1 of 1872, and called the Evidence Act, 1872, has eleven chapters and 167 sections, and came into force on 1st September 1872. Over a period of approximately 140 years since its enactment, the Evidence Act has basically retained its original form except certain amendments from time to time.

After the Independence of Bangladesh in 1971, the Act continues to be in force in Bangladesh, however it was repealed in Pakistan in 1984 by the Evidence Order 1984. It also applies to all judicial proceedings in the court, including the court martial as well. However, it does not apply to affidavits and arbitration. Law in Bangladesh ( British India) has evolved from religious prescription to the current constitutional and legal system we have today, traversing through secular legal systems and the common law. Coding of law also began in earnest with the forming of the first Law Commission. Under the stewardship of its chairman, Host of other statutes and codes like Evidence Act (1872) and Contracts Act (1872). It was because of introduction of English law from 1773 to 1783 through Regulations in the three presidencies and the pre existing Muslim and Hindu Law. There were differences of opinion regarding the different statutes of English law prior to 1726; whether they were applicable to British residents only or to natives also.

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