Earlier, the principles relating to law of evidence were not clear both under English and Nepali as well as Hindu and Muslim legal system. In the early English Law, ordeals, compurgation or wager of law and trial by battle were used as modes of proof. Under Hindu system of jurisprudence, sometimes divine test were used. The modern law of evidence owes its origin from English Common Law. Certain parts of law of evidence may be traced back to the period Middle Ages. However, the real beginning for the main outstanding features of evidence was made in 16th and 17th centuries, when jury started deciding cases on the evidence of witness. For the first time, a book on evidence, was written by Chief Baron Gilbert, who died in 1726.The book was published in 1756 after his death.
Historical Development of evidence law of Nepal
Nepal does not have long legal history. The country remained divided into different principalities until 1825(Bs).Late Prithvi Narayan Shah, the great, united the country in one nation and king Rana Bahadur Shah brought the country in present shape. The country remained under the Rana regime in between 1903 to 2007(Bs).The country was subject to autocratic rule during this period with concentration of power in the hand of Rana Prime minister and the king being only titular head of the country.
Rana regime was overthrown with popular movement in 2007(Bs).Until then we adopted inquisitor system of prosecution .After 2007 (Bs) the got democratization with the growth of the notion of rule of law. Thereafter we adopted adversary model of justice system. Many old provisions, traditions and practices still lurk over head even though they do not confirm with modern philosophy.
We have first codification of law in 1437(Bs) during the reign of King Jayasthiti Malla under the title “Manab Nyaya Sastra”before the unification of the country. It was basically religious code rather than code of law.Prime minister Janga Bahadur Rana, during the regime of King Surendra Birbikram Shah implemented a new code name “Muluki Ain “in 1910(Bs).Until 2007(Bs) the sources of law were command of the sovereign, custom, religious text, equity, justice and good conscience .
Historically the country was ruled by Kirat dynasty, Lichhavi dynasty, Malla Dynasty and shah dynasty in different period of time .Historically development of law has to be researched and evaluated in these perspectives.
1. Ancient notion of law and justice:
Hindu philosophy held Dharma as a composite feature of law, other philosophy with the implementation of written law in the country.
2. Trial by Ordeal:
Where there was no reliable evidence trial by ordeal and deposition thereafter used to be another method of adjudication in absence of evidence.
3. Representation in the litigation:
Until 2007(Bs) legal education was very limited. So litigants were not represented by any lawyer. They however, could appoint any person of their choice to represent their case. Within the court room bench assistant (Taharir) could give dissent opinion against the verdict of the Judge. Thus, both being subject matter of consideration in appellate court .Thus unique method got subside with the growth of the legal education and with the concern of legal aid in litigation.
4. Sarjamin[spot investigation]:
Inquisition by public authority upon information of any crime is the usual practice that prevailed since the long time. This practice was popularly known as "Sarjamin or Dor".It’s job was to investigate the case by calling persons residing at the vicinity of the scene of crime .It played vital role throughout the history in the adjudication on the case .It was finally decided by Supreme Court in Bir Bahadur Tamang v. Krishna Maya Tamang that sarjamin is not substitute of a witness. In sarjamin the person giving a statement do not take oath before their deposition, nor can they be cross examined by the opponent .So they can not be held liable for perjury, if the statement proved false later on. Recentaly investigator have adopted new method of investigation the case known as “Bastusthiti Muchulka”.Under this provision they invite local people at police station to relate information known to them as to the incidence.Such documentation is not per se evidence. These documents may be relevant in pre-trial proceeding to adjudicate whether the accused be released on bail or not pending the trial[Sec.18 of the Evidence Act 2031]
5. Witness, examination of witness:
Religious text like Manusmriti, Yagyabalk Smriti, Bhanu Smriti, Narad Smriti etc. have given elaborate description of competency of witness and their method of examination. There is no uniformity in their approach . But we can draw some common ground as an essence of their direction. These texts emphasized that witness should a person of high moral values, honest in nature, free from greed and external influence. Person like convict, dishonest, saint, person having law moral profile etc. are disregarded to be a competent witness. Witness were supposed to give deposition before the sun or the fire or the god with intimatios with his soul or inner conscience. He used to be penalized if his statement proved false. Women were excluded to be a competent witness unless it is case relating to women. The first code of 1910(Bs)has incorporated some provisions as to evidence but it does not relate elaborately with examination of witness. In grave offences court officer himself was supposed to visit to the resident of witness to take deposition if he is unable to come to the court because of his agedness, or in case of woman because of her high social status and non exposure before the public. This provision still prevails in law though obsolete in practice. The law had made mandatory provision to appear before the court compulsorily to a witness who has seen the incident by own his eye. Witness living at distant places could be examined through local authority with directions of questions to be asked with the witness in written form. This was termed as “Banda Sawal” which is still prevailing in the existing law. Witnesses were required to take oath by holding copper and Tulsi Plant before the deposition. This provision was discarded after 2020 (Bs) with reformulation of New Muluki Ain, it has written only oath provision on the face of his conscience. This law had further made provision that if there were more than one witness, all of them must be examined wherever possible on the same day. The opponent had right to cross-examine him. At the end of examination he was asked whether he had to say anything more and get recorded his response .If anything was to be taken after the process of examination he could be asked on such point only with the permission of the court .This process is know as “Tatimba’ The following persons were listed as incompetent witness.
a. Who is blind before the time of incidence
b. Who is dumb
c. Who is convicted up to 3 times or more for giving perjury.
After 2020(Bs) lawyers were made immune from giving evidence on matters which are related to him by his client .There were no provisions of privileges other than this. But Evidence Act 2031, has made a good progress over the old law in the sense that now all types of persons can be witness if he/she had perceived the incidence or fact by his/her own sense. It made further provision of privilege of witness in more extensive way. The Act has made further provision that on points of technicalities or on any other subjects of complexity the court may pursue opinion of experts in the course of the proceeding.
Documentary evidence:
Documentary evidence is regarded as vital evidence throughout the history. Kagaj janch ko Mahal has laid down certain format for certain type of transactions. Documents not complying with these provisions do not create any liability. There are certain documents which are to be required registered if the transactions to be valied. These are some safeguards to hold the transaction free from collusion fraud or other forms of mis-representation. Any document which is in one’s own handwriting may be given in evidence against such person even though he has not fixed this signature on it. The usual practice is that the document given in evidence is shown to the other party for his reaction on it. If he describes it as fraud , the court pursues other method of proving it[3].The Evidence Act 2031 has made elaborate provision as to the method of proving documentary evidence. It also specifics the conditions in which secondary evidence can be adduced in the proceeding.
7.Admission and confession:
Admission and confession played dominating role throughout the history of Nepalese Justice system. Dirrect examinations of the accused or the litigant prevailed until 2007(Bs). Jawan Bandi, Thado Bujhnu, Kayalnama, Sabiti were such terms which have relevance with admission and confession of the litigant. Any accused against whom there is prima facei evidence, he was supposed to confess his guilt before the police. If he does not do so the police was entitled to administer torture against him [Chori ko No.1,Muluki Ain 1910 Bs].This practice still pervades among the police even though The Evidence 2031 has prohibited it. The present court practice is that confession before the police is taken as evidence only if the court finds it free from torture, influence or pressure of any kind or it must be corroborated by some other independent evidence.
8. Character evidence:
Character evidence used to one of the evidences against the accused in the past. Accused having criminal record used to suffer in various ways in the process of confession from them. Evidence Act 2031 has dispensed this practice by making clear cut provision that character can not be given as evidence unless the character is itself in issue. Though the law has made such explicit provision the older practice of stating the past conviction of the accuse in the charge sheet still prevails. This contradictory with the sprit of evidence Act 2031,and it awaiting reform on it.
9. New Introduction made by Evidence Act 2031:
The Evidence Act 2031, has introduce some new and progressive provisions that what existed in the past. They may be listed as follows
- Judicial Notice
- Presumption of law and presumption of fact
- Hearsay and exception to hearsay rule
- Expert opinion
- Burden of proof
- Estoppels
- Privileges of witness
The present Evidence Act 2031 is obviously a progressive over the past practice. But we can not say that it is perfect one. It has not yet been fully implemented in practice because of our traditional style of working and inadequacy in training. The following points are worthy of consideration for future reform.
- Even accuse may be invited as a witness of his /her case and be subjected to cross-examination by the opponent unless and until he/she refuses to do so.
- The defense of alibi has become of general phenomenon in our system, when an accused confesses his/her guilt before the police and denies it before the court. A mechanism is to be evolved to discourage such practice which encourages manufacturing of evidence.
- Confession has to be made reliable and useful evidence by encouraging guilty party to plead guilty with an attraction of lesser amount of punishment on such plea.
- The method of adducing evidence at the beginning of the trail is to be reviewed. Instead of disclosing each and every evidence at the outset the proceeding whether civil or criminal, the prosecution or the plaintiff must be allowed to establish their case by prima facie evidence. The burden of proof goes on changing as per the progress of the case.
- Conviction and sentencing proceeding has to be separated from betterment .Evidence Act 2031, has relevance only with conviction proceeding .Every other thing such as character of the accused, his/her family status, his/her earning, his/her possibility of reformation, his/her is relevant in sentencing. Sentencing considering all these matter may be regard as reformative approach of punishment.
[1] Sen.Priya Nath:General Principles of Hindu Jurisprudence, p.371
[2] NKP 2019,P.240
[3] Section 78 of Court Management of Muluki Ain 2020
[4] Sec.5 of the Evidence Act 2031
[5] Sec.6 and 7 of the Evidence Act 2031]
[6] Sec.10,11,12 of the Evidence Act 2031]
[7] Sec.23 of the Evidence Act 2031
[8] Sec. 25 to 33 of the Evidence Act 2031
[9] Sec.34 of the Evidence Act 2031
[10] Sec.40 to 45 of the Evidence Act 2031]
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