1. Enunciate the special provisions as to admissibility of Digital record.

➢ The Evidence (Amendment) Act, 2022 introduced special provisions for the admissibility
of digital records in Bangladesh.

➢ Section 3 of the Evidence Act was amended to include digital and electronic records
within the definition of “evidence.”

➢ Section 65A states that digital records are admissible only if the conditions laid down in
Section 65B are fulfilled.

➢ Section 65B allows digital records to be admitted as evidence without producing the
original device, subject to certain conditions.

➢ The computer that generated the record must have been used regularly during ordinary
business or activity.

➢ The computer must have been operating properly at the relevant time.

➢ The digital information must have been fed into the computer in the ordinary course of
business.

➢ A certificate must accompany the electronic record under Section 65B(4).

➢ The certificate must identify the device, state the method of production, confirm the
integrity of the process, and be signed by an authorized person.

➢ Without this certificate, the digital record is not admissible, even if it is relevant.

➢ This ensures the authenticity and reliability of digital evidence in court proceedings.

2. Sketch a clear view through which we can identify the rules regarding "Burden of
Proof".

• Burden of Proof means the obligation to prove a fact or establish a case before the court.
• The general rule is stated in Section 101: “Whoever desires any court to give judgment as to
any legal right or liability dependent on the existence of facts which he asserts, must prove
that those facts exist.”
• Therefore, the burden lies on the party who asserts a fact — usually, the plaintiff or
prosecution.
• Section 102: If both parties have asserted facts, the burden lies on the person who would fail
if no evidence were given by either side.
• Section 103: The burden of proving any particular fact lies on the person who wishes the
court to believe in its existence.
• Section 104: The burden of proving that a case falls within any general or special exception
(e.g., self-defense under Penal Code) lies on the accused.
• Section 105: In criminal cases, once the prosecution proves the basic offence, the burden
shifts to the accused to prove any defense under exceptions.
• Section 106: When a fact is especially within the knowledge of any person, the burden of
proving it lies on him (e.g., alibi or personal knowledge).
• Section 107–108: These deal with the burden to prove whether a person is alive or dead when
their existence becomes a legal question.
 • Section 109: In relationships like landlord-tenant or principal-agent, the burden to disprove
the relationship lies on the person who denies it.
• Section 110: Possession of property gives rise to a presumption of ownership, and the burden
lies on the challenger to disprove it.
• Section 111: In cases of fiduciary relationships (e.g., guardian and ward), the burden lies on
the party in power to prove good faith.
• Burden of Proof is not fixed — it may shift during trial depending on the nature of the case
and evidence presented.

burden of proof exists in both civil and criminal cases but is applied differently:

• Civil cases: burden on the claimant to prove his claim on a preponderance of probabilities.
• Criminal cases: burden on prosecution to prove guilt beyond reasonable doubt, with some
burden shifting to accused for defenses.

how can the legitimacy of a child be proved?

Proving Legitimacy of a Child:

• Under Section 112 of the Evidence Act, a child born during the continuance of a valid
marriage is presumed to be legitimate, i.e., the child is presumed to be the child of the
husband.
• This presumption is conclusive, meaning it cannot be rebutted by evidence to the contrary,
except in cases where the husband had no access to the wife at the time of conception.
• If the child is born after the dissolution of marriage, legitimacy can be proved if it is shown
the child was begotten during the subsistence of the marriage (e.g., born within 280 days of
dissolution).
• In cases where legitimacy is questioned, proof of the marriage and birth within wedlock is
sufficient to establish legitimacy.
• Other evidence, such as the acknowledgment of the child by the father, also supports
legitimacy.

3. Illustrate the general law of presumption as to documents.

• Presumption means the court may assume certain facts as true unless disproved.
• The Evidence Act contains several rebuttable presumptions related to documents.
• Section 79: The court shall presume the genuineness of certified copies of public documents
issued by proper authorities.
• Section 80: Presumption as to documents produced as record of evidence or statement in a
judicial proceeding — the court presumes the documents are genuine and properly recorded.
• Section 81: The court shall presume the genuineness of official gazettes, newspapers, and
other public notifications.
• Section 82: Presumption as to documents prepared under any law in force — presumed to be
genuine.
• Section 83: Maps or plans made by government authority are presumed to be accurate if
prepared for official purposes.
• Section 84: Presumption as to collections of laws and reports of decisions of the courts —
such legal publications are presumed to be accurate.
• Section 85: The court shall presume the validity of a power of attorney if it is executed and
authenticated before a notary or magistrate.
• Section 85A: Presumption as to electronic agreements — if an electronic agreement carries a
digital signature, it is presumed to be valid.
 • Section 85B: The court shall presume that digital records and messages are authentic if
generated in regular business.
• Section 86: Certified copies of foreign judicial records are presumed to be genuine if
authenticated by legal process.
• Section 87: Presumption as to books, maps, and charts commonly offered for sale —
presumed to be accurate representations.
• Section 88: Presumption as to telegraphic messages — presumed sent by the authority it
purports to come from.
• Section 88A: Presumption as to electronic messages (emails, texts, etc.) — court may
presume they are sent by the originator.
• Section 90: If a document is more than 30 years old and produced from proper custody, the
court may presume it is genuine and properly executed.
• Section 90A: Same presumption applies to electronic records that are at least 5 years old.

4. Who may testify? Enunciate the provisions which are applicable in case of privileged
information and communication. "Judge's power to put question or order
production"— Construe the term with specific provision.

Who May Testify (Sec. 118)

• Every person is competent to testify unless unable to understand or respond rationally.

• Includes children, lunatics (if capable), parties, spouses, convicts.
• Court decides competency based on mental and physical capacity.

Privileged Communications

• Sec. 122: Spousal communication during marriage is privileged; continues after divorce.
• Sec. 123: State documents can’t be disclosed without department head’s permission.
• Sec. 124: Public officers can withhold official communications if public interest is at risk.
• Sec. 125: Police/Magistrate can’t be forced to reveal informants.
• Sec. 126: Lawyers can’t disclose client communications made in professional confidence.
• Sec. 127: Privilege extends to clerks, interpreters, etc.
• Sec. 128: Client may waive privilege.

Judge’s Power to Question or Order Production (Sec. 165)

• Judge may ask any question at any stage to discover truth.

• Can order any document or witness to appear.
• Parties cannot object to such questions.
• Judgment must be based on relevant and admissible evidence.

5. Define Estoppel. Write down the elements of estoppels and classify estoppels by conduct

• As per Section 115 of the Evidence Act, 1872,

“When one person has, by his declaration, act or omission, intentionally caused or permitted
another to believe a thing to be true and to act upon such belief, he shall not be allowed to
deny the truth of that thing in any suit or proceeding.”
Elements of Estoppel

1. Representation or Conduct by one party.

2. Reliance by another party on that representation.
3. The other party acted upon it and changed their position.
4. The first party is now trying to deny the original representation.
5. It would be unfair to allow that denial.

Classification of Estoppel by Conduct

1. Estoppel in Pais (also called Equitable Estoppel)

o Based on spoken words or conduct.
o Prevents denial of a fact already accepted by one’s own conduct.
2. Promissory Estoppel
o When one party makes a promise without legal consideration, and the other relies on
it.
o Often applies against the government in administrative matters.
3. Proprietary Estoppel
4.
o Arises when someone acts upon a belief related to property rights, induced by
another’s conduct.
5. Who is Hostile witness? Illustrate the rules regarding questioning in chief. Find out the
purpose of cross examination as examination of witness.

• A hostile witness is one who:

o Refuses to tell the truth in court, or
o Changes his statement against the party who called him.
• As per Section 154, the court may allow the party who called the witness to cross-examine
him if declared hostile.
• Hostile witnesses are unreliable but not wholly inadmissible.

Rules Regarding Examination-in-Chief

• Defined in Section 137.

• It is the first examination of a witness by the party who calls him.
• Must be limited to relevant facts only (Section 138).
• Leading questions are not allowed unless permitted by court (Section 142).
• Purpose is to bring out the facts in support of the case.

Purpose of Cross-Examination

• Defined in Section 137 & 138.

• Cross-examination is done by the opposite party after examination-in-chief.
• Purpose:
1. Test the truthfulness of the witness.
2. Detect falsehood, bias, or contradiction.
3. Shake the credibility of the witness.
4. Elicit facts favorable to the cross-examiner’s case.
• Leading questions are allowed in cross-examination (Sec. 143).
7. Short Notes:
a) Leading question;
Leading question is a question that suggests the answer within it. According to Section 142 of the
Evidence Act, leading questions are generally not allowed during examination-in-chief because they
may influence the witness’s testimony. However, they are allowed during cross-examination or if the
court permits, especially when the witness is declared hostile (see Section 154).
b) Private document Vs Public document;
A private document is created by private individuals or parties without official authority, such as
contracts or personal letters. A public document, on the other hand, is issued by a government
authority or official in discharge of public duties, like birth certificates or court records. Public
documents are presumed to be genuine under Sections 74 to 78 of the Evidence Act unless proven
otherwise.
c) Different modes of proving handwriting.
Handwriting can be proved in several ways under Section 46 of the Evidence Act: by the person who
wrote the document himself, by someone familiar with the handwriting before or after the document
was written, by expert comparison with known samples, or by considering surrounding circumstances
related to the document.

Q. Define and classify document in the light of law of evidence. When does secondary evidence
become admissible?

A document is anything written or expressed to record information (Section 3, Evidence Act).

Documents are of two types:

• Public documents: issued by government or public authority and presumed genuine (Sections
74–78).
• Private documents: created by private individuals (e.g., contracts, letters).

Secondary evidence is allowed when the original document is unavailable due to loss, destruction, or
refusal to produce it by the opponent or third party (Section 63).

3. Discuss the scope, nature and object of cross-examination.

Q. Identify the admissibility of the following evidences stating the relevant provisions of the
Evidence Act, 1872.
a) Testimony of a dumb

A dumb person can testify if he can understand questions and communicate by signs or
writing.Competency depends on the court’s satisfaction about his ability to give rational answers
(Section 118).

b) Testimony of an accomplice
An accomplice’s testimony is admissible but must be treated with caution because of possible bias or
interest.Conviction should not be based solely on accomplice testimony unless it is corroborated by
other evidence (Section 133).

6. Define leading question. Mention the cases when can leading question be asked? Can
leading question be asked in Examination-in-Chief?

A leading question is one that suggests the answer within the question itself.

When Can Leading Questions Be Asked?

• During cross-examination of a witness.

• When the court gives special permission.
• If the witness is hostile or adverse.
• During examination-in-chief in cases of children, lunatics, or witnesses who cannot
understand the questions.
• When refreshing memory or dealing with preliminary matters.

Can Leading Questions Be Asked in Examination-in-Chief?

• Generally, no, leading questions are not allowed in examination-in-chief (Section 142,
Evidence Act).
• Exceptions exist as above when court permits or in special situations.

7. Write short-notes on the following

a) Hostile Witness
A hostile witness is one who, when called by a party, shows unwillingness to tell the truth, or whose
evidence contradicts the party’s case. Under Section 154 of the Evidence Act, the court may declare a
witness hostile and allow the party who called him to cross-examine the witness to challenge his
testimony. Such witnesses are considered unreliable, but their evidence is still admissible. The process
helps in exposing inconsistencies and testing the witness’s credibility.

b) Judicial Notice
Judicial notice is the process by which a court accepts certain facts without formal proof because
they are generally known or can be easily verified. Examples include facts of common knowledge like
geographical facts, dates of public holidays, or laws. Judicial notice saves time and resources during
trials by avoiding unnecessary evidence production. It is based on the principle that some facts are so
notorious that their truth is accepted universally.

c) Presumption
Presumption is a legal inference or assumption made by a court that a fact is true until disproved by
evidence. Presumptions can be:

• Rebuttable: Can be contradicted by evidence (e.g., presumption of innocence).

• Conclusive: Cannot be disproved (rare).
Sections 79 to 90 of the Evidence Act provide presumptions related to documents, age,
ownership, and more. Presumptions help courts draw conclusions when direct proof is lacking
but sufficient indirect evidence exists.
d) Best Evidence Rule
The best evidence rule requires that when proving the contents of a document, the original document
must be produced in court whenever possible (Section 64). Secondary evidence (like copies or oral
accounts) is only admissible if the original is lost, destroyed, or otherwise unobtainable, and the
circumstances justify its absence. This rule ensures reliability and reduces chances of fraud or
misrepresentation in documentary evidence.

Q. Classify presumption and narrate shall presumption and may presumption with illustration.

Classification of Presumption

Presumptions in law are classified into two main types:

1. Rebuttable Presumption (May Presumption)

o The court may presume a fact to be true but can disbelieve or disprove it by contrary
evidence.
o It is a prima facie presumption, not binding.
o Example:
▪ Presumption of innocence of the accused in a criminal case (Section 101
Evidence Act).
▪ Presumption that a person continues in the occupation of land until proved
otherwise.
2. Conclusive Presumption (Shall Presumption)
o The court shall presume the fact to be true and cannot disbelieve or disprove it by
evidence.
o It is irrebuttable and binding on the court.
o Example:
▪ Presumption that a child under a certain age is incapable of committing a
crime.
▪ Presumption under Section 112 that a child born during marriage is the
husband’s child.

Shall Presumption (Conclusive Presumption)

• The court must presume the fact unless it is impossible or absurd to do so.
• The presumption cannot be rebutted by any evidence.
• Example:
o Under Section 112, a child born within the subsistence of marriage is conclusively
presumed to be the husband’s child.
o This presumption cannot be disproved by evidence to the contrary.

May Presumption (Rebuttable Presumption)

• The court may presume the fact unless and until contrary evidence is presented.
• The presumption is disputable and can be overturned.
• Example:
o Under Section 101, the burden of proof lies on the person who asserts a fact. The
court may presume the fact to be true but can be convinced otherwise.
o Presumption of the continuity of possession until proved otherwise.
Q. 'A tenant is estopped from denying the title of landlord,' explain. Distinguish between
Estoppel and Waiver.

Tenant Estopped from Denying Title of Landlord:

• Under Section 115 of the Evidence Act, when a tenant accepts possession or pays rent, he
admits the landlord’s title to the property.
• The tenant’s conduct or declaration leads the landlord to believe in his ownership.
• Hence, the tenant is estopped (prevented) from later denying the landlord’s title in court.
• This prevents tenants from acting inconsistently and promotes fairness in landlord-tenant
relations.

Estoppel Waiver
Prevents a party from denying or asserting something Is the intentional relinquishment or giving
contrary to a prior act, statement, or conduct. up of a known right.
Is a doctrine of evidence to stop injustice caused by Is a voluntary act showing consent to
inconsistency. forego a right or claim.
Can arise by conduct, declaration, or silence leading Must be a clear, intentional act or
others to believe in a fact. agreement to waive a right.
It is used to protect third parties’ reliance on the It affects the party’s own rights and may
representation. not affect third parties directly.

Q. How can a document be proved? Classify secondary evidence and elucidate the
circumstances when secondary evidence relating to documents may be given.

How Can a Document Be Proved?

• A document can be proved by producing the original document before the court (known as
primary evidence) as per Section 61 of the Evidence Act.
• If the original is unavailable, then secondary evidence can be given (see below).
• Proof may involve examining the document itself and testimony to establish its authenticity,
authorship, and contents.

Classification of Secondary Evidence (Section 63)

Secondary evidence includes:

1. Certified copies of the original document from a public office.

2. Copies made from the original by mechanical or electronic means (e.g., photocopies, digital
scans).
3. Copies compared with the original and certified as true copies.
4. Oral accounts of the contents of the document by a person who has seen the original.
5. Counterparts of documents executed by different parties.

When May Secondary Evidence Be Given? (Section 65)

Secondary evidence is admissible when:

• The original document is lost or destroyed without any bad faith.

 • The original is in the possession or power of the opposite party, and they fail to produce it
after proper notice.
• The original is in the possession of a third party who fails to produce it despite notice.
• The original is a public document that cannot be produ

6. a) A prosecutes 'B' for theft. B wishes the court to believe that at the time in question, he was
elsewhere. Who bears the burden of proof?
In a theft case, the prosecution (A) bears the initial burden of proving that B committed the
theft beyond reasonable doubt (Section 101 Evidence Act). However, if B claims an alibi
(that he was elsewhere), the burden shifts to B to prove this fact, as it is especially within his
knowledge (Section 106).
b) A is charged with travelling on a railway with a ticket. Upon whom the burden lies?
When A is charged with travelling on a railway without a valid ticket, the burden of proving that A
had a ticket lies on A (the accused), because possession of a ticket is an exception to the general rule
(Section 104 Evidence Act).

c) A, a client, says to B, an advocate: 'I have committed forgery and I wish you to defend me". Can
the advocate be compelled to deliver the communication before the court?

No, the advocate cannot be compelled to disclose communications made by the client in professional
confidence. Under Section 126 of the Evidence Act, communications between an advocate and client
are privileged and protected from disclosure, unless the communication is used to commit a crime or
fraud.

7. Short Notes:

a) Indecent and Scandalous Question

• A question that is offensive, insulting, or irrelevant to the case.

• The court has power to disallow such questions to protect witness dignity and maintain trial
decorum (Section 148, Evidence Act).
• Used to prevent unnecessary humiliation or scandal during examination.

b) Private Document vs Public Document

• Private Document: Created by private individuals or entities without official authority (e.g.,
contracts, private letters).
• Public Document: Issued by government or public officials in discharge of official duties
(e.g., birth certificates, court records).
• Public documents are presumed genuine (Sections 74–78, Evidence Act).

c) Court to Decide When Question Shall Be Asked and When Witness Compelled to Answer

• Under Section 148, the court has discretion to allow or disallow questions during examination
if deemed irrelevant, improper, or scandalous.
• The court may compel a witness to answer relevant questions unless protected by privilege or
other legal exceptions.