Not long ago the country was shocked by the brutal murder of Abrar Fahad who was beaten to death in his dormitory. Abrar’s death is the latest in a series of murders that were recorded either in the CCTV or mobile phone cameras. With the circulation of its CCTV footage on social media, one question resurfaced in the legal arena– whether this footage would be admissible in the court.

In Bangladesh the Evidence Act, 1872 (the Act) is the primary law for determining the admissibility and relevancy of evidence in courts. However, this century-old legislation strikes a discordant note with modern times where evidence is not limited to oral accounts and physical documents.

Section 3 of the Act classifies evidence into two categories: oral evidence and documentary evidence. It follows that evidence submitted to the court must come under the rubric of either oral or documentary evidence. According to this section,

“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.

Judicial interpretation, however, has created a scope for incorporating modern forms of evidence within the definition of ‘document’ in the Act. The first case can be traced back to 1985. In Mrs Khaleda Akhtar v the State1, Justice ATM Afzal liberally interpreted the word ‘matter’ present in the definition of document. It was concluded that ‘document’ includes a video cassette or tape made by recording certain matter on magnetic tapes, with the help of technology, for the purpose of showing it on television.2

Unfortunately, no reported judgment of the Supreme Court discussed the issue of admissibility of electronic evidence in the next twenty-four years. Finally, in 2009 Major Md. Bazlul Huda v State touched upon the admissibility of video evidence. In this case, the prosecution submitted a video cassette of a television program in which Major Rashid and Farooque Rahman admitted their participation in the killing of Bangabandhu Sheikh Mujibur Rahman. Both Justice Tafazzul Islam and Justice S.K Sinha determined that the question of admissibility of digital or electronic evidence as documentary evidence arises only when the accused denies his statement or admission.3 Otherwise, digital or electronic evidence can be readily taken as documentary evidence. In case of denial it can only be admissible under the prevailing law of evidence. After a strictly literal interpretation of section 3 of the Act, the court ultimately denied admitting electronic evidence. Unfortunately, neither the prosecution nor the court referred the case of Khaleda Akhtar v The state. Despite the vaguely reached conclusion, from reading the judgment, it can be assumed that although the court was prepared to include video evidence as documentary evidence, it was unwilling to accept the application of the same evidentiary standard to prove electronic evidence. In such a situation, the prosecution could have convinced the court about the authenticity of the videocassette by bringing a qualified expert under section 45 of the Act. The prosecution brought a local video recorder who failed to convince the court.4

In 2017, about eight years later, the High Court Division in the case of State v Qamrul Islam5 (popularly known as Rajon Murder case) held that video footage is a document within the Act and is, therefore, admissible. The court drew a parallel interpretation from the Khaleda Akhtar case. However, the principle given in Khaleda Akhtar case is applicable only for video recorded by an analogue camcorder. Analogue camcorders are recorded on tape or cassettes, but digital camera uses storage media such as Secure Digital (SD) cards. The court failed to elaborate on how their interpretation would apply to the digital camcorder.

Moreover, it is noticeable that the courts have used the term ‘electronic evidence’ and ‘digital evidence’ interchangeably. This is somewhat misleading because the two terms are not synonymous. To be exact, electronic evidence is the genus of which digital evidence is a species. Electronic evidence includes both analogue evidence (vinyl records, audiotape, photographic film) and digital evidence (anything created or stored in a computer).6 Despite this, it can be concluded that the latest view of the court, as expressed in Rajon Murder case, is that video evidence even in digital form is admissible as it falls within the definition of document.

Apart from judicial interpretations, electronic evidence has been made admissible in a few recently enacted special legislations. Section 16 of the Speedy Trial Tribunal Act, 2002; Section 87 of the Information and Communication Technology Act, 2006; Section 21 of the Anti-Terrorism Act, 2009; Section 6 of the Pornography Control Act, 2012 and Section 58 of the Digital Security Act, 2019 provide for the admission of electronic evidence notwithstanding the definition provided in the Act. However, these laws only apply to specific cases and leave everything else to the parent law.

In the Biswajit murder case7 the court easily admitted video evidence because the case was sent to the Speedy Trial Tribunal. Section 16 of the Speedy Trial Tribunal Act, 2002 states that videos, still photographs, audiotape recorders, and discs have evidentiary value.8 A question can surely be asked as to why two statutes in the same judicial system provide different evidentiary standards. For example, if the Abrar murder case is sent to the Speedy Trial Tribunal, the court would readily accept the CCTV footage as evidence but the same would be difficult in the ordinary criminal court.

The court in different cases, so far, has only accepted videos stored in a videocassette, compact disk and hard drive as evidence. Electronic evidence is not only limited to video evidence and the court is yet to discuss the admissibility of digital evidence in the strict sense. As the field of digital evidence is fast increasing, it should not be left to the court’s discretion to admit such evidence. On the other hand, scattered incorporation of electronic evidence in a few special laws without providing any general evidentiary standard has done little to solve the problem.

A few steps can resolve this drawback. Firstly, the definition of a document in section 3 should be amended to include all forms of electronic evidence. Secondly, a new chapter on electronic evidence needs to be added that details the rules on admitting electronic evidence. Thirdly, as the digital world is constantly evolving, any amendment can become obsolete in a few years. Therefore, a room can be made for separate rules regarding electronic evidence. The government can form an expert committee to determine the need for amendments to the rules every year. Apart from the amendments, the court should use section 45 of the Act to admit the opinion of technical experts in the cases involving electronic evidence.

To conclude, in the current digitized era, Evidence Act, 1872 in its present form is quite anachronistic. Among our neighbouring countries, India has amended the Indian Evidence Act, 1872 by the Information Technology Act, 2000 to include electronic evidence while Bhutan has incorporated the same in the Bhutanese Evidence Act, 2005. Pakistan has enacted the Electronic Transactions Ordinance, 2002 to make room for electronic evidence. It is unfortunate that Bangladesh has fallen so far behind and is yet to incorporate provisions regarding electronic evidence in the primary evidence act. Therefore, it is high time our parliament amended the Evidence Act, 1872 to make it compatible with the challenges of modern times.


  1. Mrs. Khaleda Akhtar v the State (1985) 5 BLD 303.
  2. ibid [6].
  3. Major Md. Bazlul Huda (Artillery) v State (2017) 62 DLR (AD) 1 [173] [726].
  4. ibid [773].
  5. Qamrul Islam v State LEX/BDHC/0019/2017.
  6. Burkhard Schafer and Stephen Mason, ‘The characteristics of electronic evidence’, in Stephen Mason and Daniel Seng (eds), Electronic Evidence (4th edition, Institute of Advanced Legal Studies for the SAS Humanities Digital Library, School of Advanced Study, University of London 2017) 19.
  7. State v Md. Rafiqul Islam and Ors (2018) 70 DLR (HCD) 26.
  8. ibid [57].
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