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Saturday, August 27, 2011
Tuesday, August 2, 2011
THE EVIDENCE ACT, 1872
THE EVIDENCE ACT, 1872
CONTENTS
Part – 1
Relevancy of Facts
CHAPTER – I
Preliminary
SECTIONS
1. Short title
Extent
Commencement of Act.
2. [Repealed]
3. Interpretation – clause
4. “May Presume”
“Shall presume”
“Conclusive proof”
CHAPTER – II
Of The Relevancy of Facts
5. Evidence may be given of facts in issue and relevant facts.
6. Relevancy of facts forming part of same transaction.
7. Facts which are the occasion cause or effect of facts in issue.
8. Motive, preparation and previous or subsequent conduct.
9. Facts necessary to explain or introduce relevant facts.
10. Things said or done by conspirator in reference to common design.
11. When facts not otherwise relevant become relevant.
12. In suits for damages, facts tending to enable Court to determine amount are relevant.
13. facts relevant when right or custom is in question.
14. Facts showing existence of state of mind, or of body, or bodily feeling.
15. Facts bearing on question whether act was accidental or intentional.
16. Existence of course of business when relevant
ADMISSIONS
17. Admission defined.
18. Admission –
By party to proceeding or his agent;
By suit or in representative character;
By party interested in subject-matter;
By person from whom interest derivd.
19. Admissions by persons whose position must be proved as against party to suit.
20. Admissions by persons expressly referred to by party to suit.
21. Proof of admissions, against persons making them, and by or on their behalf.
22. When oral admissions as to contents of documents are relevant.
23. Admissions in civil cases when relevant.
24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.
25. Confession to police-officer not to be proved.
26. Confession by accused while in custody of police not to be proved against him.
27. How much of information received from accused may be proved.
28. Confession made after removal of impression caused by inducement, threat or promise, relevant.
29. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc.
30. Consideration of proved confession affecting person making it and other jointly under trial for same offence.
31. Admissions not conclusive proof, but may be stop.
STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES
32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.
When it relates to cause of death;
Or is made in course of business;
Or against interest of maker;
Or gives opinion as to public right or custom, or matters or general interest;
Or relates to existence of relationship;
Or is made in will or deed relating to family affairs;
Or in document relating to transaction mentioned in section 13, clause (a);
Or is made by several persons, and expresses feelings relevant to matter in question.
33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.
STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES
34. Entries in books of account when relevant.
35. Relevancy of entry in public record, made in performance of duty.
36. Relevancy of statements in maps, charts and plans.
37. Relevancy of statement as to fact of public nature contained in certain Acts or notifications.
38. Relevancy of statements as to any law contained in law-books.
HOW MUCH OR A STATEMENT IS TO BE PROVED
39. What evidence to be given when statement forms part of a conversation, document, book, or series of letters or papers.
JUDGMENTS OF COURTS OF JUSTICE WHEN RELEVANT
40. Previous judgments relevant to bar a second suit or trail.
41. Relevancy of certain judgments in probate, etc., jurisdiction.
42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41.
43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant.
44. Fraud or collusion in obtaining judgment, or in competency of Court, may be proved.
OPINIONS OF THIRS PERSONS WHEN RELEVANT
45. Opinions of experts.
46. Facts bearing upon opinions of experts.
47. Opinion as to handwriting, when relevant.
48. Opinion as to existence of right or custom, when relevant.
49. Opinion as to usages, tenets, etc., when relevant.
50. Opinion on relationship, when relevant.
51. Grounds of opinion, when relevant.
CHARACTER WHEN RELEVANT
52. In civil cases, character to prove conduct imputed, irrelevant.
53. In criminal cases, previous good character relevant.
54. Previous bad character not relevant, except in reply.
55. Character as affecting damages.
PART – II
On Proof
CHAPTER – III
Facts Which Need Not Be Proved
56. Fact Judicially noticeable need not be proved.
57. Facts of which Court must take judicial notice.
58. Facts admitted need not be proved.
CHAPTER – IV
Of Oral Evidence
59. Proof of facts by oral evidence.
60. Oral evidence must be direct.
CHAPTER – V
Of Documentary Evidence
61. Prof of contents of documents.
62. Primary evidence.
63. Secondary evidence.
64. Proof of documents by primary evidence.
65. Cases in which secondary evidence relating to documents may be given.
66. Rules as to notice to produce.
67. Proof of signature and handwriting of person alleged to have signed or written document produced.
68. Proof of execution of document required by law to be attested.
69. Proof where no attesting witness found.
70. Admission of execution by party to attested document.
71. Proof when attesting witness denies the execution.
72. Proof of document not required by law to be attested.
73. Comparison of signature, writing or seal with others, admitted or proved.
PUBLIC DOCUMENTS
74. Public documents.
75. Private documents.
76. Certified copies of public documents.
77. Proof of documents by production of certified copies.
78. Proof of other official documents.
PRESUMPTION AS TO DOCUMENTS
79. Presumption as to genuineness of certified copies.
80. Presumption as to documents produced as record of evidence.
81. [ Omitted ]
82. Presumption as to document admissible in England without proof of seal or signature.
83. Presumption as to maps or plans made by authority to Government.
84. Presumption as to collections of laws and reports of decisions.
85. Presumption as to powers-of-attorney.
86. Presumption as to certified copies of foreign judicial records.
87. Presumption as to books, maps and charts.
88. Presumption as to telegraphic messages.
89. Presumption as to due execution, etc., of documents not produced.
90. Presumption as to documents thirty years old.
CHAPTER – VI
Of The Exclusion Of Oral By Documentary Evidence
91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.
92. Exclusion of evidence of oral agreement.
93. Exclusion of evidence to explain or amend ambiguous document
94. Exclusion of evidence against application of document of existing facts.
95. Evidence as to document unmeaning in reference to existing facts.
96. Evidence as to application of language which can apply to one only of several persons.
97. Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies.
98. Evidence as to meaning of illegible characters, etc.
99. Who may give evidence of agreement varying terms of document.
100. Saving of provisions of succession Act relating to wills.
PART – III
PRODUCTION AND EFFECT OF EVIDENCE
CHAPTER – VII
Of The Burden Of Proof
101. Burden of proof.
102. On whom burden of proof lies.
103. Burden of proof as to particular fact.
104. Burden of proving fact to be proved to make evidence admissible.
105. Burden of proving that case of accused comes within exceptions.
106. Burden of proving fact especially within knowledge.
107. Burden of proving death of person known to have been alive within thirty years.
108. Burden of proving that person is alive who has not been heard of for seven years.
109. Burden of proof as to relationship in the case of partners, landlord and tenant, principal and agent.
110. Burden of proof as to ownership.
111. Proof of good faith in transactions where one party is in relation of active confidence.
112. Birth during marriage conclusive proof of legitimacy.
113. [Omitted ]
114. Court may presume existence of certain facts.
CHAPTER – VIII
Estoppels
115. Estoppel
116. Estoppel of tenant; and of licensee of person in possession.
117. Estoppel of acceptor of bill of exchange, bailee of licensee.
CHAPTER – IX
Of Witnesses
118. Who may testify.
119. Dumb witnesses.
120. Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trail.
121. Judges and Magistrates.
122. Communications during marriage.
123. Evidence as to affairs of State.
124. Official communications.
125. Information as to commission of offences.
126. Professional communications.
127. Section 126 to apply to interpreters, etc.
128. Privilege not waived by volunteering evidence.
129. Confidential communications with legal advisers.
130. Production of title-deed of witness, not a party.
131. Production of documents which another person, having possession, could refuse to produce.
132. Witness not excused from answering on ground that answer will criminate.
133. Accomplice
134. Number of witnesses.
CHAPTER – X
Of The Examination Of Witnesses.
135. Order of production and examination of witnesses.
136. Judge to decide as to admissibility of evidence.
137. Examination – in – chief.
Cross – examination.
Re – examination.
138. Order of examinations.
Direction of re – examination.
139. Cross – examination of person called to produce a document.
140. Witnesses to character.
141. Leading questions.
142. When they must not be asked.
143. When they may be asked.
144. Evidence as to matters in writing.
145. Cross – examination as to previous statements in writing.
146. Questions lawful in cross – examination.
147. When witness to be compelled to answer.
148. Court to decide when question shall be asked and when witness compelled to answer.
149. Question not to be asked without reasonable grounds.
150. Procedure of Court in case of question being asked without reasonable grounds.
151. Indecent and scandalous questions.
152. Questions intended to insult or annoy.
153. Exclusion of evidence to contradict answers to questions testing veracity.
154. Question by party to his own witness.
155. Impeaching credit of witness.
156. Questions tending to corroborate evidence of relevant fact admissible.
157. Former statements of witness may be proved to corroborate later testimony as to same fact.
158. What matters may be proved in connection with proved statement relevant under section 32 or 33.
159. Refreshing memory. When witness may use copy of document to refresh memory.
160. Testimony to facts stated in document mentioned in section 150.
161. Right of adverse party as to writing used to refresh memory.
162. production of documents. Translation of documents.
163. Giving, as evidence, of document called for and produced on notice.
164. Using, as evidence, of document production of which was refused on notice.
165. Judge’s power to put questions or order production.
166. Power of jury or assessors to put questions.
CHAPTER – XI
Of Improper Admission And Rejection of Evidence.
167. No new trial for improper admission or rejection of evidence.
SCHEDULE – [Repealed]
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THE EVIDENCE ACT, 1872
ACT NO. 1 OF 1872
[ 15th March, 1872 ]
WHEREAS it is expedient to consolidate, define and amend the law of Evidence; It is hereby enacted as follows :-
Part – 1
Relevancy of Facts
CHAPTER – I
Preliminary
1. This act may be called the Evidence Act, 1872.
Short Title
It extends to the whole of Bangladesh and applies to all judicial proceedings in or before any Court, including Courts-martial, other than Courts-martial convened under the 1[ Army Act 1952, the Naval Discipline Ordinance 1967, or the Air Force Act 1953 ] but not to affidavits presented to any Court or officer, nor to proceedings before an arbitrator;
Extent
And it shall come into force on the first day of September,1872.
Commencement
Of Act.
2. [ Repealed by the Repealing Act 1938 (Act no. 1 of 1938), section 2 and Schedule ]
[Throughout this Act, except otherwise provided, the words “Bangladesh”, “Government” and “Taka” were substituted, for the words “Pakistan”, Central Government” and “Rupees” or “Rs” respectively by the Bangladesh Laws (Revision and Declaration) Act, 1973 (Act No. VIII of 1973), section 3 and 2nd Schedule.
1 The words, commas and figures “Army Act,1952, the Naval Discipline Ordinance, 1961, or the Air force Act, 1953” were substituted, for the words, commas and figures “Army Act, the Naval Discipline Act or that Act as modified by the Pakistan Navy (Discipline) Act, 1934, or the Air force Act” by the Bangladesh Laws (Revision and Declaration) Act, 1973 (Act no. VIII of 1973), section 3 and 2nd Schedule.]
3. In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context :-
Interpretation
Clause
“Court” includes all judges and Magistrates and all persons, except arbitrators, legally authorized to take evidence.
“Court”
“Fact” means and includes –
(1) anything, state of things, or relation of things capable of being perceived by the senses;
(2) any mental condition of which any person is conscious.
Illustrations
(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith of fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.
One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts
“Relevant”
The expression “facts in issue” means and includes – any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.
“Facts in
issue”
Explanation – Whenever, under the provisions of the law for the time being in force relating to Civil Procedure any Court records an issue of fact. The fact to be asserted or denied in the answer to such issue is a fact in issue.
Illustrations
A is accused of the murder of B.
At his trail the following facts may be in issue :-
that A caused B’s death;
that A intended to cause B’s death;
that A had received grave and sudden provocation from B;
that A, at the time of doing the act which caused B’s death, was, by reason of unsoundness of mind, incapable of knowing its nature.
“Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.
“Document”
Illustrations
A writing is a document;
Words printed, Lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document;
“Evidence” means and includes –
“Evidence”
(1) 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;
(2) all documents produced for the inspection of the Court;
Such documents are called documentary evidence.
A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
“Proved”
A fact is said to be disproved when after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
“Disproved”
A fact is said not to be proved when it is neither proved nor disproved.
“Not proved”
4. Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it;
“Many presume”
Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved;
“Shall presume”
When one fact is declared by this Act to be conclusive proof of another, the Court Shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for he purpose of disproving it.
“Conclusive proof”
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