TyroCity: Evidence Law Notes

Special procedure relating to examination of witness

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Witnesses are examined in three stages. They are

Examination – in- chief,
Cross- examination and
Re- examination.

Examination-in–chief
At this stage the lawyer are entitled to put such questions which are relevant to the fact in issue. They can not put leading question. Questions, which suggest answers, are regarded as leading questions, whose usual answer would be in yes or no form. However leading question may be asked in the following two situations as

Where the subject matter is beyond controversy and
where the subject matters has already been proved in the court.

Witnesses vary in nature. Some may be talkative; others shy; lawyers must use their skill to bring out facts from the witness, which are relevant and important to their case. The must control talkative witness, while encourage to speak shy – witness.

Cross- examination:
Cross- examination starts after the completion of examination in chief and opponent lawyer has right to cross –examination. At this stage he/she is as liberty to put leading question to the witness. His/her questions may have been designed to test the veracity, credibility and accuracy of the statement deposited by the witness. Exposing his/her bad character may impeach the witness. It is one of the grounds to discredit the witness. Witness may be discredited by showing relationship between him/her and the litigant, by showing his/her interest in between him/her and litigant in the subject matter of case. He/she may be contradicted by presenting statement made by him/her or some other occasion. Cross-examination is double edged weapon which should be wailed with great caution. It is one of the most crucial part of the examination of the witness which may affect the out come of the case. According to Philip Wendel, it is double-edged weapon, if you know to wield, it helps to cut enemy’s neck. Otherwise, it cuts one’s own hand. When a witness is cross-examined, he/she may be asked any question which tends:

to testify his/her veracity (correctness)
to discover, who he/she is and what is his/her position and
to shakes his/her moral character

Re-examination:
After the completion of cross-examination the first presenting party has right to reexamination but he/she can not ask questions on new subject matter. He/she must be limited to the impact of cross-examination. He/she should try to make thinks correct which has been distorted in cross-examination. He/she can not ask leading question in re-examination except in the following situations;

If not objected by the adverse party or
With the permission of the court or
Already sufficiently proved matter (undisputed)

The other adverse party may further re-cross examine the witness.

Case law relating to Expert Opinion

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

The Supreme Court of Nepal , generally gives preferences to the opinion of expert. It is only sometimes that the court does not consider the Expert Opinion as evidence

In the case of HMG vs. Rajesh K.C. and others,”Semen was found on the clothes of the victim and the person accused of rape. The forensic report was positive during the examination of vaginal swab of the victim; the Supreme Court in this case convicted the accused on the ground of Doctor’s medical report.
Similarly in the case of Sideni Sah Kanu vs.Prabhu Sah Kanu,”the dispute was whether the number ‘0’ had been altered into ‘7’ or not? The expert opined that ‘7’ in the disputed writing and ‘7’in the writing in other places were different .The writing of the disputed number ‘7’was written by different ink, contained plenty of hesitation marks and tremors, and the pen pressure was very thick. The Supreme Court observed that the number ‘7’ was made by altering number ‘o’.
Similarly in the case of Prem Bahdur vs. Ganesh Das,the Supreme Court has observed that the written signature deserves greater importance rather than finger prints impressions if the party executing it seems to be an educated person.
However in the case of Hanif vs.HMG, the Supreme Court rightly held that expert opinion given merely on the ground of inference and not on reliable grounds cannot be relied upon.[NKP,2025(1968),p.94]
Similarly in the case of Milki Ram vs. HMG,the Supreme Court decided that where the doctor is supposed to be , limited to corpse, if doctor gives an opinion on such things that does not conform the condition of dead body , such opinion cannot be relied upon.

Burden of proving such fact which is condition precedent to some other fact

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Section 31 of the Evidence Act 2031 lays down that ,there are certain facts which are admissible on proof of some other facts. Such as dying declaration is admissible as evidence only one proof that the person making it , is dead. Certain facts are admissible as evidence. Under the Section 12 of the evidence Act 2031 , only if the person making it is dead or can not be found etc. secondary evidence is admissible , if it is public document or the original lost or destroyed. In all these cases the party trying to prove the secondary fact must also prove the first fact as condition precedent.

Application of Plea of Alibi

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Plea of Alibi known as adverse burden of proof. Generally Courts are not accept plea of alibi easily. If the defendant failed to produce the evidence which would prove that he/she was not at the place where the offence was committed but rather was elsewhere, it can be seen that the Supreme Court of Nepal has not considered the claim of plea of alibi. In such condition where the claim of plea of alibi is not proved then the confession made before the police , as in the case of HMG. vs. Ali kha Mushalman and the witness testimony , as in the case of Yogya Narayan vs. Badrinath Khanal has been taken as evidence to convict the accused. As established principle in the case of R.vs.Johnson (1995) that the evidence which proves no more than that the accused was not present at the place where the offence is committed is not sufficient but affirmative evidence of presence at some other particular place is required. On this ground in the case of Padam Bahadur vs. Dambar Singh Magar, the accused Dambar Singh presented the evidence that he was at Nwakot District Court at the time when the alleged offence was committed. In case of HMG.vs.Dukhi Mahato Koiri and others, the accused was able to prove that he was admitted in the hospital while the alleged offence was committed and similarly in the case of Gopal Prasad Prajuli and others vs. HMG,one of the accused was acquitted upon the testimony of the witnesses that he was at their house at the time of inicident. In these cases the accused were acquitted irrespective of the evidences like witness testimony and Sarjamin report(spot investigation) against them.

Types of estoppels

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

We may categories estoppels as follows:

1. Estoppel by Record:

It refers to judgment or public records, which are believed to be true. A person who acts in pursuance of judgment or records cannot be estopped.

2. Estoppel by Deed:

It means stopped by an agreement .When a person enters into an agreement and his/her statement is furnished their in , he/she shall not be permitted to deny his/her statement.

3. Estoppel by Conduct (Estoppel in Pais):

When a person , by acts or words or deeds induces another person to believe the existence of the thing and make him/her to act upon it, he/she is stopped from denying the existence of such facts.

4. Promissory Estoppel:

The rule of “Promissory Estoppel” is recognized by the court of equity in England. It is also known as ‘Requisite Estoppel ‘ or ‘New Estoppel.’ It does not come within the meaning of sec.34 of Evidence Act 2031.It relates with future promise , where a person makes a promise to another thereby induces him/her to do an act to alter his/her position; the person promise is stopped from denying the truth of that promise. In the case of M.P.Sugar Mills vs. State of UP,Indian Supreme Court has Evolved the concept of promissory estoppels in the first time in India.

Estoppel is rule of civil actions. It has no application in criminal proceedings and also does not operate in the question of law, which is where there is law everybody should act as per the law. Ple of estoppel does not count in such situation but admission has close relevance with estoppel. Estoppel is not a piece of evidence rather it is a procedure to stop the other party making contradictions. It is one of the important procedures, which has vital effect in any court proceedings.

Relevant Fact

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

All logical facts are not relevant but only those facts are relevant which fall within the guideline laid down by rules of evidence. The Evidence Act 2031 Sec.3 says that any facts which tend to prove or disprove fact in issue is relevant fact. The does not give any more description as to relevant fact.

Indian Evidence Act 1872 has given elaborate analysis and explanation on relevant fact, which is equally useful in Nepalese context as well. They may be stated as follows:

Fact forming part of the same transaction is regarded as relevant fact. Therefore anything said and done by persons involved in any incident is relevant as forming part of the same transaction. Similarly expression made by spectator being influenced by the incidence is relevant.The relevant fact is based on the Roman Phrase that “in jure non-remota,causa sed proxima spectator” means it is not remote but the approximate cause that count.

In the case of Homes vs. Newman ,British Court has established the Doctrine of Res Gestae .The Court said that “A phrase adopted to provide a respectable legal clock for variety of cases to which no formula of precision can be applied”.

The Nepalese provision may be also stated as statement on the spot. Such facts are relevant because they are spontaneous .The statement is accompanied by exhibition of bodily condition .It should not be descriptive.

Fact showing occasion cause or effect in relation to fact in issue is relevant as evidence. Occasion denotes opportunity .’A’ is charged with robbing ‘B’ .The fact that on some earlier occasion ‘B’ has visited market where he had exhibited large sum in presence of some person including ‘A’ is relevant as fact showing occasion.

Fact showing motive ,preparation, previous or subsequent conduct is relevant. Normally in any pre mediated activity person does not act without motive .Motive throws light in to the incidence. So motive is one of the relevant fact that prove in any case.

All types of pre contemplated activity undergo some sort of preparation .Preparation is relevant fact to show that how the accused accomplished his/her enterprise. Therefore procuring poison from a shop is relevant fact in a poison case.

Any conduct of the accused designated by him/her to avoid detection may be regarded as his/her previous or subsequent conduct , which may be regarded as relevant fact in subsequent trial. The fact he/she absconded from his/her house immediately after the incidence is relevant fact showing his/her subsequent conduct.

When accused can take Plea of Alibi

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

If accused does not express about plea of alibi and directly express in front of the judge in the court ,in such situation court may not entertain. However, this kind of provision is not present in context of Nepal. So , it creates the high scope for accused to claiming plea of alibi and also manufacturing the false evidence to prove his/her defence. Therefore the plea of alibi evidence is observed by the court very often is highly suspicious and concocted. If alibi evidence established by inspected and unbiased testimony , it would be the best evidence to satisfy the court.

Burden of proving fact which is in specific knowledge of the party

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Section 30 of the Evidence Act 2031 states that , any fact which is specific knowledge of the party to the litigation , it should be proved by the same party to the satisfaction of the court , for example , in a charge for travelling train without ticket, the party claiming that he/she had a ticket at the given time , must prove it by himself/herself. It is a fact within special knowledge of him/her. This rule does not cover facts like intention, motive even though they are within special knowledge of the party concerned.

Documents prepared at the time of investigation

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Documents prepared by the authorities during the time of investigation of any crime are relevant. As per the Section 18 of Evidence Act 2031, documents prepared in the course of investigation are relevant only if the witness making such statement come to the court to testify himself/herself. However, in the following two situation the court may take recognize of such statement without coming the witness as its preliminary hearing whether to grant bail on the accused or not.

It is Postmortem Report and the opinion of the expert has conformity with other circumstance evidence. The same holds good if the opponent party does not challenge the opinion of the doctors.
If it is Syracuse Report , the witness need not to come to testify at preliminary hearing in the court.

Burden of Proof : Definition

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

The expression burden of proof means “obligation to proof a fact.” Every party of the case has to establish facts which go in his/her favor or against his/her opponent. In other words, the general rule with regard to burden of proof is:” He/she who asserts must prove.” The reason is “one who drags another into the court must hear the burden of proving the facts which he/she asserts”.

The word ‘proof’ signifies a state of mental certainty as to existence or non-existence of some fact and the phrase’ burden of probabilities which has to be compulsive or overwhelming in the case of a choice in favor of a conviction as to remove all reasonable doubt. Burden of and presumption may become decisive only where evidence from both sides is equally balanced or there is paucity of evidence on either side.

Rebuttal of Presumption:

Section 29 of the Evidence Act 2031 states that there are certain facts, which are presumed by the court in favor of either party to the litigation. Presumption of law are those situations in which the law directs the court to presume certain facts on proof of some other facts. The court is obliged to presume as per the direction of law if such situation does not exist. Such situation are listed at the Section 6 of the Evidence Act 2031.The court acts as per the presumption until it is rebutted by the other party.

Similarly, presumption of facts are those situations in which the court acts on option whether to presume certain fact or not. If it does presume , the other party must bear burden of proof to rebut it. Section 7 of the Evidence Act 2031 has laid down such situations.

Presumption of Ownership:

Section 33 of the Evidence Act 2031 says that any person who is in possession of property is presumed to be owner of that property. The person rebutting it must bear burden of proof to the same effect. Similarly Section 110 of Evidence Act 1872 of India lays down that a person in possession of a property is presumed to be the owner . If anybody denies that the possessor is not owner, the burden of proof lies on him/her.

Meaning, Nature & Scope of Law of Evidence

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

The word ‘evidence “is derived from the Latin word evider, which means to show clearly; to make clear to the sight; to discover clearly; to make plainly certain ; to ascertain ; to prove. So evidence is about proving or disproving facts in issue, the means by which such facts come to be proved or disproved.

Black’s Law Dictionary has defined the evidence as something including testimony documents and tangible objects) that tends to prove or disprove the existence of an alleged fact.E.g.the bloody glove is the key piece of evidence for the prosecution .Evidence is the demonstration of a fact , it signifies that which demonstrates makes clear or ascertains the truth of the very fact or p0int in issue.

Moonir states that “The term evidence in its legal and general acceptation includes all means by which alleged fact is proved or disproved to the satisfaction of the court”.

Phipson states that –Evidence means the testimony whether oral, documentary ,real which may be legally received in order to proved or disproved some fact in issue”.

As per the Indian Evidence Act,1892 Evidence means;

All statements which the court permits or requires to be made before it by witness in relation to matter of fact under enquiry such statements are called oral evidence.
All documents produced for the inspection of the court, such documents are called documentary evidence.

Black stone says that which demonstrates, makes clear or ascertain the truth of facts or points in issue either or one side or other .

Evidence Act of Nepal 2031 does not define about the meaning or definition of evidence.

In conclusion evidence means to prove or disprove, fact in issue is evidence and in another word it called relevant fact.

General principle of the law of evidence:

The evolution of evidence law is based on certain basic principles . These are knowing as “five principles” as

Best evidence must be produced in all cases: Where there is possibility of availability of best evidence the court insist on its production. The court would not consider other inferior evidence . Direct evidence is regarded as best evidence.
Hearsay is no evidence: Generally hearsay evidence is discarded in the trial , where there is possibility of availability of direct evidence. So it is the negative expression of the first principle state above. There are several exceptions to this rule.
He who sets the law in motion must establish his case himself: The rule concerns with burden of proof .The Prosecution in criminal proceeding and the Plaintiff in civil proceeding must establish his case by evidence before hearing the other party.
In criminal proceeding guilt must be proved beyond the reasonable doubt .Where there is doubt benefit of doubt goes to the accused.
In civil proceeding the case may be adjudicated on balance of probability: The party wins the case who is able to adduce more evidence compare to his opponent.

Nature and scope:

Evidence law is generally used in court. Its scope is very much high and broad. Generally it comes to use in two sectors as Judicial and Quasi Judicial.

Judicial Sector:

1. In civil case: Law of evidence is playing vital role. If Plaintiff comes to court and ask for Justice then he/she shall give evidence. If can not able to produce evidence , then he/she lost his/her case. In other hand if Plaintiff produced evidence against the defendant then defendant shall also produce his/her evidence against plaintiff.

2. In criminal case: Law of evidence playing most important role in criminal case as well as civil case. If anyone frames charge-sheet against anyone, the framer shall produce evidence.If someone takes plea of innocent then he/she shall produce evidence of innocence.

Quasi Judicial Sector:

Administrator has jurisdiction to see certain case. As per the Interim Constitution of Nepal 2007(2063) Article …. Called them Judicial Institutions. They have to follow due process of law; it means evidence law is necessary them too.

Facts recorded in book of account

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Any books of account, which is regularly kept may be taken as a evidence. As per the Section 14 of Evidence Act 2031”any books of account regularly kept or prepared by any office or authority may be taken as evidence’.

The principle is that such account is less likely fabricated and if any false entry is made that can easily be detected.