Published: 12:01 AM, 14 November 2026
Evidence Should Be Taken Not By Whim, But Within Evidence Act Framework
Chandan Kanti Nath
A primary condition of the judicial process is the admission of acceptable evidence. However, simply presenting evidence in court does not automatically make it admissible; it must be legally "relevant." Sections 6 through 55 of the Evidence Act, 1872, provide explicit details on which matters are deemed relevant by a court. Consequently, neither judges nor lawyers are given any legal room to invent relevance according to their personal whims or discretion. Under Section 5 of the Act, evidence may only be given concerning the existence or non-existence of the main facts in issue of a case and other facts declared relevant thereto. There is no legal basis to admit evidence or cross-examine on matters outside this scope.
Simply put, the statements and actions of concerned persons or eyewitnesses present at, before, or after the occurrence of an event are relevant and admissible in court. For instance, if Abbas is accused of murdering Akkas with a sharp weapon, bloodstains found at the scene, special preceding occasions, and the surrounding circumstantial environment are considered relevant matters. If Abbas is accused of poisoning Akkas and he had acquired the same type of poison prior to the death, it is relevant as preparation for the murder. Similarly, Abbas's conduct of fleeing his home after the commission of the offense is also relevant evidence in the trial. In cases of anti-government or criminal conspiracies, activities such as funds collected by multiple individuals, the purchase of weapons, or the exchange of secret letters are all admissible as relevant evidence to prove the conspiracy.
The law also provides clear avenues to prove innocence. If Abbas is accused of murdering Akkas in Dhaka, his presence in Kurigram on the day and at the time of the incident-known as a plea of alibi-constitutes relevant and admissible evidence. Furthermore, when a person's mental or physical state is material to a proceeding, it is inferred from their prior or subsequent conduct and statements. For example:
Prior malicious remarks or publications are relevant to prove a mindset of defamation.
If, prior to intentionally shooting someone, the accused had previously attempted to shoot the same person, it is admissible to prove intent or mental state. However, a sweeping general disposition that "the individual has a general habit of shooting people" is not relevant to the trial.
In a charge of passing counterfeit or fake currency, if more fake currency is found in the possession of the accused or if they were previously convicted of the same offense, it is relevant; however, a prior conviction for theft would not be relevant in this context.
In civil suits, suppose Abbas purchases a piece of land from Akkas. If Akkas (the former owner), prior to the transfer, made any written or oral admissions regarding the title or boundaries of the land, such admissions will be legally binding on Abbas following the purchase. Similarly, if an agent or representative appointed by Abbas makes an admission within the scope of their authority, Abbas himself will be held responsible for it. Oral admissions regarding the contents or relevance of an electronic record are not relevant unless the accuracy or authenticity of the record is challenged. In civil proceedings, if there is an express condition between parties that evidence or information is to be kept confidential or has been provided for the purpose of out-of-court settlement, such admissions cannot be proved. However, barristers, attorneys, and pleaders are exempted from the obligation to disclose confidential communications made by their clients.
Confessions made to a police officer cannot be proved against a person accused of any offense. In criminal trials, a confession made by an accused person is neither relevant nor admissible if it is induced by any inducement, threat, or promise having reference to the charge against the accused, proceeding from a person in authority and sufficient to give the accused reasonable grounds for supposing that they would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings. In a criminal trial, after murdering Akkas, Abbas confesses to the police, "I killed Akkas and hid the bloodstained knife in the pond behind my house." Under Section 25, this confession made to the police cannot be used as evidence against Abbas. However, under the exception in Section 27, if the police recover the bloodstained knife from the pond based on information provided by Abbas, only the portion of the statement distinctly relating to the discovery of the knife becomes relevant and admissible as evidence against him.
When multiple persons are being jointly tried for the same offense and one of them makes a confession affecting themselves and some other co-accused, the court may take into consideration such confession against both the maker and the other co-accused. If a confession is made freely after the removal of the impression of any prior inducement, threat, or promise (to the satisfaction of the court or competent authority), it is relevant and admissible. For instance, if Abbas and Karim are jointly tried for the murder of Akkas, and during the trial Abbas confesses, "Both Karim and I killed Akkas together," the court may consider this confession as circumstantial corroborative material against Karim.
When a person's death occurs, or they cannot be found, or become incapable of giving evidence, or cannot be procured without an amount of delay or expense which the court considers unreasonable, their previous statements (such as a dying declaration or statements made in the ordinary course of business) are deemed relevant. Particularly:
Statements relating to the cause of death (Dying Declarations).
Statements made in the ordinary or regular course of business.
Statements made against the maker's proprietary or pecuniary interest.
Opinions as to public rights, customs, or matters of general interest.
Statements relating to family relationships or blood ties.
While receiving medical treatment in critical condition at a hospital, Abbas states to a doctor, "Akkas inflicted this injury by hitting me in the stomach with a stick." If Abbas subsequently dies, this dying declaration becomes highly potent and relevant evidence against Akkas in a murder or assault trial. Furthermore, entries or records in account books, ledgers, or electronic records maintained in the regular and ordinary course of business are relevant in any matter in question. In subsequent proceedings, testimony given by a witness in earlier judicial proceedings (such as a prior trial or investigation) may be admitted as relevant evidence if the original witness is dead, incapable of giving evidence, or cannot be found.
Consider Rahim, an accountant who regularly maintained account books. After Rahim's death, his ledgers reveal that Abbas received money from Akkas on a specific date. This written record by Rahim is admissible as relevant evidence in court. If Akkas claims that Abbas has not paid his dues and produces his regular business account books in court, they are relevant; however, the court will not render a judgment solely on the basis of account books without corroborative supporting evidence. Statements contained in official registers, books, or electronic records maintained by public servants in the discharge of their official duty are relevant and serve as primary or strong proof. Published maps, charts, or plans (generally offered for public or professional sale) are relevant in determining general or geographical matters.
Information or statements published in official gazettes, parliamentary acts, or notifications are relevant. The court may also accept foreign laws or legal textbooks as relevant. When the opinion of an expert is relevant, the grounds or other foundational facts supporting that opinion also become relevant. A previous judgment, order, or decree of a court is relevant if it legally bars a new suit or issue (such as the doctrine of Res Judicata or matters previously adjudicated).
Abbas files a civil suit against Akkas regarding land disputes. Akkas submits a certified copy of a previous final judgment showing that a court previously adjudicated in Akkas's favor regarding the same land and issue. Under Section 40, this prior judgment is relevant and admissible to bar the current suit. However, any party may prove that a previous judgment or order was irrelevant or ineffective if it was procured through fraud, collusion, or by a court lacking jurisdiction.
When the court requires special skill in science, art, foreign law, or in identifying handwriting or finger impressions, the opinions of persons specially skilled (experts) in such matters are relevant. As a general rule, a witness may only testify to facts observed or known, not opinions. However, expert opinions are relevant in specific circumstances. Abbas claims a document bears Akkas's signature, but Akkas denies it, claiming forgery. To prove the authenticity of the document, the opinion of a handwriting expert or fingerprint expert becomes relevant in court. In the case of correspondence, if Rahim has long exchanged letters with Abbas or worked under him and is well-acquainted with his handwriting, Rahim's opinion on whether a document bears Abbas's signature is also admissible evidence. To verify electronic or digital signatures, the opinion of the Certifying Authority or relevant technical expert is relevant.
Other facts supporting or rebutting an expert's opinion are also relevant. Opinions of persons acquainted with a person's handwriting or electronic signature-having observed them write or interact-are relevant. Opinions regarding the existence of general customs or rights are relevant when expressed by those likely to have knowledge of them. Opinions on blood or marital relationships within a family given by relatives or close associates are also relevant, provided such relationships are manifested through conduct or lifestyle. Furthermore, the reasoning or grounds behind an expert's or any other person's opinion may be explained and are relevant.
The extent to which the character of an accused or party is relevant in judicial proceedings is strictly prescribed by law. In civil suits, whether Abbas is a good or bad person is generally irrelevant. However, in criminal proceedings, evidence that Abbas (the accused) was previously a person of good and honest character is relevant and may be considered in his favor. As a general rule, the prosecution cannot introduce evidence of the accused individual's bad character unless evidence of good character has been given by the accused. However, the exception is: if Abbas claims to be of exemplary character, the prosecution is entitled to prove his prior bad character. If Abbas has been previously convicted of another crime, the warrant or record of that conviction is admissible as evidence of bad character. Conversely, in sexual offense cases, previous sexual history or moral character is irrelevant. In charges involving specific sexual offenses (such as rape or outraging modesty), the victim's prior sexual behavior or moral character is not relevant to determine the issue of consent or to undermine credibility.
Every single outline regarding what enters a trial and what is excluded is determined entirely by statutory law. Consequently, there is no place for a judge's personal desire or whim while seated on the bench; adhering to these statutory restrictions of the Evidence Act is the cornerstone of the judicial system in ensuring impartial and flawless justice.
Chandan Kanti Nath is Additional
District and Sessions Judge,
Khagrachhari.
