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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 54
February 2 , 2008

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Evidence Act 1872: Right time to amend

Md. Elyus Rahman

Evidence Act was introduced in this subcontinent in the year 1872. In the period of Bangladesh this important act is not amended except repealing some sections. Over the immediate past decades technological development has put an important role on the legal proceedings. In its continuance Evidence Act, 1872 also can be updated with little bit amendments.

In case of definition
If the word 'evidence' includes electronic evidence such as electronic records, electronic message, electronic agreement, digital signature and any evidence with electronic form, it will be recognition of modern technology. The electronic form of evidence will be applied cautiously in some specific issues such as oral admissions. We know oral admission is a vital part of testimony. In case of oral admissions as to the contents of electronic records may be considered as irrelevant, unless the genuineness of the electronic record produced is in question. Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (referred to as the computer output) shall be deemed to be also a document. In case of keeping accounts entries in the books of account, we can also include those accounts as evidence which are kept in an electronic form as in most cases computer or such other sophisticated electronic equipment have become a very common phenomenon.

In case of presumption
It is an inference or assumption of the truth or falsehood of a fact or proposition drawn by the court by a process of probable reasoning from some fact already proved or taken for granted.

Custodial injuries: Custodial violence leading to injuries, rape or death of suspects or accused has become very common in our country. Human Rights organisations in their reports have also been referring to custodial deaths and expressing concern over their increasing number. But, even after all the observations and developments, the incidents of custodial deaths are continuing unabated. According to the human rights organisation Odhikar, 184 people have been reportedly extra judicially killed by the law enforcing agencies in 2007 and of them at least 69 died in the custody. It is not secret that while in police custody all kinds of third degree methods are used by police officers to extract information from the accused which, many a time, lead to custodial death. The courts have issued several guidelines for police (BLAST v Bangladesh 55 DLR 363 and Saifuzzaman v Bangladesh) in order to prevent the custodial death and torture, but they are observed more in breach.

In case of prosecution of police in custodial deaths, it is very difficult to find any eye-witness. Besides, any other policeman never comes forward to give evidence against his fellow policeman accused of custodial death. Therefore, it is very difficult to implicate a policeman in the absence of evidence. Under the circumstances, it may be appropriate if the courts while trying a police officer accused of custodial death should presume that it has been caused by the police officer and the onus of proving innocent is fixed on the police officer. It is, therefore, necessary that changes in the Evidence Act are made regarding presumption by court if the death of a person takes place while he was in police custody. Such an amendment will definitely serve as deterrent to the police officer and reduce the incidents of custodial deaths.

Electronic record: It is noted that in any proceedings involving a secure electronic record, the Court shall presume, unless contrary is proved, that the secure electronic record has not been altered since the point of time to which the secure status relates.

Presumption as to electronic messages: The Court may presume that an electronic message forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.

Presumption as to electronic records five year old: Where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the digital signature which purports to be the digital signature of any particular person was so affixed by him or any person authorised by him in this behalf.

Presumption as to electronic agreements: The Court shall presume that every electronic record purporting to be an agreement containing the digital signature of the parties was so concluded by affixing the digital signature of the parties.

In case of expert's opinion
Opinion of a person not a party to the suit is not important. But there maybe some cases where, due to technicality involved, the court cannot form a correct opinion of its own. In such situations it becomes necessary to take the opinion of an expert in that field. An expert is a person who is especially skilled and has devoted time and study and thus is especially skilled on those points on which he is asked to state his opinion. In case of fixing the legitimacy of a child or identifying the criminals and victims DNA test can be most reliable means. In such cases the court can seek help from the scientists.

Determining legitimacy of a child: There still lies an ambiguity in the contents of the section 112. Here the section states that if a child is born within 280 days, after dissolution of marriage, the legitimacy of that child is conclusive. Here, it seems that the law is a step ahead then the medical science, as the point regarding exact days of child birth is not settled in medical arena, till date. It is basically an issue of medical science which has to be dealt with sincere scientific aptitude and by Laws of Nature. Basically, this section was formulated in year 1872, nearly 140 years ago. But, in last three decades, there is an unpredictable growth of scientific temperament. And, even the Legal Community is showing the impression of the same. Here, introduction and admission of DNA technology can actually be fruitful, to meet the ends of the justice.

Identifying criminals and victims: Forensic scientists can use DNA in blood, semen, skin, saliva or hair at a crime scene to identify a perpetrator. This process is called genetic fingerprinting, or more accurately, DNA profiling. In DNA profiling, the lengths of variable sections of repetitive DNA, such as short tandem repeats and minisatellites, are compared between people. This method is usually an extremely reliable technique for identifying a criminal. However, identification can be complicated if the scene is contaminated with DNA from several people. People convicted of certain types of crimes may be required to provide a sample of DNA for a database. This has helped investigators solve old cases where only a DNA sample was obtained from the scene. DNA profiling can also be used to identify victims of mass casualty incidents.

In case of rape victims
Despite Constitutional provisions guaranteeing equality and special protection for women, there still exist few discriminatory provisions under various laws. Section 155 (4) of the Evidence Act, 1872, provided that: “When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character”. The archaic and unethical provision of this section is affecting victims of rape. I think this portion of this section should be deleted. It is common for the defense counsels to refer to prior sexual conduct of the complainant in their pleadings for demolishing her testimony that she does not consent, thus tarnishing the reputation and chances of marriage of the complainant. The amendment can protect the individual honour and dignity of woman.

It is noted that in 2003, India deleted that clause and inserted a provision in Section 146 after clause (3) as “Provided that in a prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character”.

The enactment of the Evidence Act 1872 was a landmark judicial measure in this subcontinent, which changed the entire system of concepts to admissibility of evidences in the courts of law. It is noted that the rules of evidences were based on the traditional legal systems of different social groups and communities of this subcontinent. Besides, while enacting the act the law makers keep in mind the customary practice of the people of that region. About after 136 years it is necessary to sophisticate the act to ensure justice.


The writer is Program Officer, The Daywalka Foundation.


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