TyroCity: Evidence Law Notes

Statement on the spot

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

Statement made before or after the incident, that is called statement on the spot. Section 10 of Evidence Act 2031 states that “Anything said or done spontaneously in any incidence may be given in evidence”.

Such type evidence also known as statement made as a part of transaction.

As per the Section 6 of Indian Evidence Act 1872 has made similar provision. It is also known as res jestae. Such statement, in order to be admissible must be made spontaneously with the incidence. It should not be narrative in style and should avoid concoction of evidence.

Who can make such statement?

Any person who has observed the incidence or who has suffered the incidence, may make such expressions and person who observed or heard it may give evidence.

Rationality:

Any person who has spoken anything exhibiting his/her personal feeling through bodily gesture may be given in evidence by a person who has come across of him/her. The principle is that such expressions are less likely to be false.

Hostile witness and its Credibility

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

The word ‘hostile’ literally means unfriendly .A witness is generally expected to give evidence in favor of the party to whom he/she is called. But in certain cases such witness may unexpectedly turn hostile and gives evidence against the interest of the party, who has called him/her. Such witness is called ‘hostile witnesses. He /she is also known as ‘Adverse witness’ or ‘Unfavorable witness’. A hostile witness is one who form the manner in which he/she gives evidence shows that he/she is not desirous to telling the truth to the court.

Where the witness is adverse to the party called him/her, such party is not entitled as of right to cross –examine the witness. The matter is entirely in the discretion of the court whether to permit to the person calling the witness to put any questions to him/her , which might be put by the adverse party in cross-examination. Before putting such question, the party must take permission from the court. In the case of Sat. Paul vs. Delhi Administration the Supreme Court of India observed that witnesses were supposed to be independent, made contradictory statement and the prosecution with permission of the court can cross-examine them.

Credit of hostile witness:

Principally, the court relies upon the evidence given by the witness to arrive at the truth or falsity of the claim or charge in the litigation. Some times, the witness called by the party turns hostile and it is not safe to rely upon such evidence. Then the parties may be provided with an opportunity to give independent testimony by impeaching the credit of witness.

The credit of witness may be impeached in the following ways by the adverse party or with the consent of the court by the party who called him/her;

By the evidence of persons who testify that they ,from their knowledge of the witness , believe him/her to be unworthy of credit.
By proof that the witness has been bribed or has accepted the offer of a bribe or has received any other corrupt inducement to give his/her evidence.
By proof of former statements inconsistent with any part of his/her evidence which is liable to be contradicted.

Cross- examination is an art:

When thinking about cross-examination , it is important to keep in the mind that its primary purposes is destructive – to destroy the credibility of the witness by suggesting that the witness did not perceive correctly, does not remember accurately what he/she saw, is not communicating accurately , what he/she thinks , he/she remembers, he/she saw or is lying .Thus most of the cross –examination , when it is not eliciting new facts that the witness has not testified to on direct –examination in order to help build the cross-examiner’s case-in –chief or defense, attacks perception , memory, clarity or sincerity. Sincerity is the most complex of these testimonial capacities and is itself often broken down into bias, prejudice, interest and corruption.

Cross-examination is often spoken by trial lawyers as the ultimate trial art-the most difficult skill for a lawyer to master, requiring years of practice, an intuitive grasp of human psychology and understanding of the legal subject matter, the judge and jury’s subjective needs and biases, and all of the information contained in the World Almanac(just incase the witness testifies on direct that he/she saw the crime committed in the moon light in which there was no moon).Young lawyers, however, often find that asking the non object able question on direct examination is a bigger problem. But direct examination is mostly a matter of knowing what the foundational requirements are for the evidence you want to elicit, asking the question in proper order(starting with who is witness? what is her connection to the case?) to establish the necessary foundation and allowing the witness to tell the story. Allowing the witness to tell his/her story makes not only good sense from an advocacy perspective; it is what the rules require. Leading questions should not be used on direct examination or with friendly witness on cross-examination.

However cross-examination is the best test of truth or falsity. It helps to purify truth and fair justice. Cross-examination of the witness to collect other evidence. Cross-examination of the witness is the process of purifying the facts, collection of the facts for the witness of the opposite party. The proper exercise cross-examination is regarded as one of the most effective test which the law has devised for discovery of truth. It is a most effective of all means for extracting truth and exposing falsehood.

Meaning and Purpose of Examination and Cross Examination

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

Examination means testified to the witness about relevancy to find out witness knowledge, confidence , so no for the subject matter. Interrogative of witness by the opposition party is called cross examination. Cross examination is also said to be ‘ the greatest engine even invented for the discovery of earth.

Cross examination is’ the questioning of a witness at a trial or hearing by the party opposed to the party who called the witness to testify.

Cross-examination ‘the most effective art of the skilled trial lawyer; the interrogative of a witness for the opposing party by questions formed to test the accuracy and truthfulness of his/her testimony on direct examination and to bring out the truth of matter in issue; an absolute rights in action and proceeding.

According to Taylor, cross-examination is ‘the motives to prevent truth are so much numerous in judicial investigation than in the ordinary affairs of life that the danger of injustice arising from this cause’

Cross-examination of the witness is the process of purity the fact from the witness of the opposite party. It does not protect the rights of the party, must have both the right and opportunity of cross-examination. Cross-examination is one of the greatest weapon of the testing the veracity of a statement made by a person. It is both, sword of attack and a side of defense.

Purpose:

Cross-examination is designed to serve one or more of the following purposes as

To damage or destroy the opponent,
To substantially discredit the witness,
To support one’s own the case

According to Cross and Wilkins, the objective of cross-examination on conducted or on behalf of the opposite party are

to elicit evidence directly relevant to the issued which is favorable to the cross-examiners case and
To discredit the witness.

The very purpose of the cross-examination is to ask the question regarding to what the witness has stated in the examination in –chief are in the case of that witness and particularly when the witness is a party to the proceeding of that party.The entire questions which are asked with a new challenge the evidence-in – chief are permissible .The motives to prevent truth are so much more numerous in judicial investigation than in the ordinary affairs of life and the danger of injustice arising from this cause.

Formal Admission

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

Facts that need not to proved:

Facts which come within the definition of judicial notice.
Facts admitted by the opponent in the course of court proceeding.[Section 4 of Evidence Act 2031] and
Facts which come within the definition of presumption of law and presumption of fact .[Section 6 and 7 of Evidence Act ,2031]

According to Section 56 of Indian Evidence Act 1872, facts of which court will take judicial notice need not to proved by the parties to any court proceedings.

The expression ‘judicial notice ‘ means notice or recognition of the truth of the fact .

Formal Admission

Judicial notice

Presumption

Formal Admission:

The expression “Admission “means voluntarily acknowledgment of the existence or truth of a particular fact. It deals with admission by statements only oral or written or contained in an electronic form. Admission plays a very important role in judicial proceedings. If one party to the suit or any other proceeding proves that the other party has admitted his/her case, the work of court becomes easier. An admission must be clear, precise, not vague or ambiguous. The evidence Act ,2031 of Nepal has not mentioned the terms ‘admission’ and ‘confession’. Generally we can found two different views regarding admission: the first one is British view and the second one is Indian view. The sec. 9 of British Civil Evidence Act 1968, defines admission as” statements against interest by a party”. In British system admission is applied only in civil matter/case. Section 17 of Indian Evidence Act 1972, defines admission that covers both the scope of civil and criminal matters/cases. It defines admission as’ a statement , oral documentary which suggests any inference as to any fact in issue or relevant fact. This definition is much broader and wider. It means admission is the statement that refers to the acceptance of the certain facts which is related to fact in issue or relevant fact. In the case of Md.Baksh vs.Crown , the Indian Court held that there may be the admission in criminal cases. Admission is applied as evidence against the part making it. The principle is that no one generally speaks against his/her interest unless the subject matter is true.

Person competent to make admission:

Parties to the litigation.
His/her agent acting under his/her order.
His /her legal representative.
Person having joint interest in the subject matter of the suit is derived from.
Person whose liability is in question.
Person to whom suit expressly refers to.

Admissions are applied as evidence against the party making it. The principle is that no one generally speaks against his/her own interest unless the subject matter is true.

However there are three exceptional situations where admission is relevant in one’s own favor and these situations are as follows;

Statement accompanied by body or bodily feelings including statement made on the spot spontaneous with the incident.
Statement made by persons who cannot be found.
Statement relevant as evidence other than admission
Statement made with a view to come to a compromise can never be given as an evidence because dispute whenever possible must be tried to be solved by amicable means.
Admission can never be a conclusive proof but it may operate as its estoppels. An admission made by the party to the litigation is always relied upon by the court and separate evidence need not be given to prove such facts.

In the case of Bhuwane vs.Hijmajesty’s Government of Nepal, Supreme Court has made decision that “admission alone is not sufficient to hold a person liable for murdered

Characteristics of admission:

To constitute admission , the following characteristics are to be present;

It may be oral or documentary.
It is a statement to suggest any inference as to any fact in issue or relevant fact.
It may be made by any person prescribed under the law.
It must be made under the circumstances prescribed under the law.

Nature of Admission: The statement made by parties during judicial proceeding are self regarding statement .The self regarding statements are may be classified under two heads are

Self-serving statements: are those , which serve, promote or advance the interest of the person making it. Hence, they are not allowed to be proved. They enable to create evidence for themselves.
Self-harming statements: are those , which harm or prejudice or injure the interest of the person making it. These self-harming statements are technically known as ‘Admissions’ and are allowed to be proved.

Importance of Admission:

An admission is the best evidence against the party making the same unless it is untrue and made under the circumstances ,which does not make it binding on him/her. Admission by a party is substantive evidence of the fact admitted by him/her. Admissions duly proved are admissible evidence irrespective of whether the party making the admission appeared in the witness box or not. In fact, admission is the best substantive evidence that an opposite party can rely upon it. The evidentiary value of admission by the Government is merely relevant and not conclusive , unless the party to whom they are made has acted upon and thus altered his/her detriment.

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.

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.

Procedure Relating to Collecting Evidences

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

Definition:

Evidences as something legally submitted to a competent court as means of determining the truth or otherwise of an alleged matter of fact under the investigation.

Objective of evidence collection:

Establish relation between ‘scene of crime’ and ‘victim and suspect (as per the doctrine of exchange: when any two objects come in contact with each other c/o Locard’s Principle that there is always an exchange of particles in between them. Exchange of particle in between them)
The court looks into existence and non- existence of facts through the submitted evidences.

Site of evidence collection:

There are three site of evidence collection as

1. Scene of crime:
After reaching the scene of crime , the investigation officer searches for evidence. They may use 4 methods of locating evidence are Spiral, Wheel, Zonal and Grid .Thus after locating the collection of evidences starts. First of all the fragile evidences must be collected because they are likely to be contaminated easily and may loose its evidentiary value. The evidences like fingerprints and body fluids must be given first priority.

2. Fingerprints:
Mostly it found in ‘point of entry ‘of the spot. If everything are visible they can collect through scaled photography but everything are not visible then they need to be developed and lifted through scaled photography. If finger print is found in small portable objects the whole object is send to the forensic lab separately.

3. Body fluids (Blood, salvia, semen, urine):
If body fluids are fresh they are collected by means of a dropper or a pipette and placed in clean glass bottles and generally avoid plastic containers. If they are dried it is scrapped out by clean blade and placed in a clean paper or cellophane bags separately. If body fluids are present in clothes, bed-sheets etc. In such cases the whole stained cloth or piece containing the stain must be cut and send to the lab.

4. Hair, Fiber and Glass fracture:
They are collected by means of forceps and placed in a clean paper. Every piece of evidences must be collected separately.

5. Weapons, Bullets, and Cartridges;
These are collected by cotton gloves or with the help of clean white handkerchief and placed in wooden boxes with support in between. They are packed separately for lab.

6. Foot-Prints and tire marks:
These are mainly found in out-door scene of crimes. The print or caste is developed by experts in the scene itself. Such prints developed are photographed by means of a scale and is taken to the lab.

Victim:
Sample of blood (15-20 ml), hair, cloth, finger print are to be collected. The whole body of the victim is also photographed as evidences to show any marked if any in the whole body of the victim.

Suspect and his/her surrounding:
Clothes, blood, hair, seem, handwriting, finger print etc. is collected from the suspect as the case demand.

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.

Evidence Law

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

Introduction

Classification of Evidence

Types of Evidence

Fact in issue and relevant facts

Fact which not need to be proved

Deposition and Testimony

Expert Reports and Opinions

Burden of Proof

Estoppel

Plea of Alibi

Procedure Relating to Collecting Evidences

Procedure Relating to Collecting Evidences

Custody of Physical evidences

Examination of Witness

Privileges of Witness

Privileges of Witness

Significance of Physical evidence

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

1. Identification:
The physical evidence merely used to identify the offender from the physical techniques. Identification has its purpose to determination of the physical or chemical identity of a substance with as near absolute certainty as existing analytical techniques will perform.

2. Comparison:
Another significance of physical evidence is comparison the collected evidence with the same characters object or the things. Analysis is subject to a suspect specimen, and control specimen to the same tests and examinations for the ultimate purpose of determining whether or not they have a common origin.

Estoppels: Definition

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

The expression ‘Estoppel ‘is derived from the French word ‘Estoup’ which means “shut the mouth”. When a person tells us something, we generally hear him/her .If he/she says something different or contradicting, we would not hear any more and contradict such statement .Otherwise,we shall comply with it. a person by declaration (act or omission) makes/induces another to believe a thing, can not deny its truth subsequently. The other person cannot be stopped from proceeding upon such declaration. Estoppel is a rule of evidence, by which a person is not allowed to plead the contrary of a fact or state of things, which he/she has formally asserted as existing.

As per the Sec.34 of Evidence Act 2031,”any body who represents to other by word or by writing or by conduct any fact which the other party believes on it and works upon it, the first party is stopped from denying the fact in the suit that follows.”Similarly Sec.115 of Evidence Act 1872,embodies the principle of estoppels. It runs as follows, when one person has, by his declaration, act, or omission intentionally caused or permitted another person to believe, neither he/she nor his/her representative shall be allowed, in any suit or proceeding between himself/herself and such person or his/her representative, to deny the truth of the thing.

Importance of cross-examination

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

Cross-examination is one of the important process of purify the truth in the case and it plays a vital role to differentiate true or false. Cross-examination is a powerful and valuable weapon for the purposes of testing the veracity of witness and the accuracy and completeness of the story. It is entrusted to the hands of the counsel in the confidence that it will be used with discretion, and with due regards to assistance to be rendered by it to the court, not forgetting at the same time the burden that is imposed on the witness.

We can categories importance of witness as

Cross-examination test misrepresent or true represent the witness in the case,
It is a way of collection of real information about the incident,
When the witness comes contradicts, it creates some doubt about the incident,
Court gives priority for cross –examination of witness and takes strong evidence of the statement of the witness,
Cross-examination helps to give primary and secondary fact in the relevant case,
Cross-examination helps the court to find out the judgments,
Cross-examination helps to advisory party to make argument.