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.

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.

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.

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.

Quality of an Expert Witness

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

An expert is a specialist in the respective field and called as a witness in the court at that capacity. The qualities which possesses by expert witness are different from ordinary witness because generally witness can not give their opinion, but the expert generally make their opinion. Therefore, there are some important qualities of an expert witness as:

1. Expertise

An expert must have expertise or specialization in subject he/she testifies in court.That is main reason of summoning him/her.The question of expertise may be decided upon the basis of an inquiry into academic achievements, professional training, experience in trade, means at the command and the application of those for coming to conclusion.

4. Clarity:

The language used by an expert must be simple, clear and comprehensive even to ordinary people.The subject should be able to present his/her evidence in clear words and if possible , through charts, photography, sketch and phomicrographs and make his/her opinion demonstrative so that same could be appreciated by a lay person.

3. Relevancy:

An expert opinion must be relevant to both , the issue in question as well as to the established and recognized principles and findings of his/her subject. The findings must not be based on assumptions but on relevant data either from own experience or from the published works of accredited authors.

4. Reliability:

The court seeks for expert opinion in the presumption that such opinion will be more authoritative or more reliable due to his/her special knowledge on the subject. Another side of the basis of reliability is non –commitment of the expert to interests of either disputing party. They should not only be reliable but appear to be so, and that he/she should satisfy himself/herself against bias arising out of certain cases.

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.

Burden of proving specific fact

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

Section 28 of the Evidence Act 2031 says that if any law has laid down any such provision specifying that certain facts are to be proved by the certain party in the given situation, the same holds good if such situation does arise. Such as , in trafficking offence information given by the victim, the law has placed onus of proof on the accused to show that the information was untruth. In Narcotic Drugs case the person who is found in possession of such drug is presumed to be guilty the law has laid down that onus of proof lies on him/her to show his/her innocence. Similarly in corruption charge if a person is living at such standard , which is lawful income does not allow, the law has placed onus of proof on him/her to show that the property earned by him/her was through lawful means. In other cases the party making special plea must prove it on his/her own responsibility. Such as if any person pleads defense of alibi, he /she must prove it by himself/herself.

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.

Certificate, Report and special Kinds of Statistics

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

According to Section 19 of Evidence Act 2031,any persons or organizations authorized to provide credential or certificates , such documents shall be regarded as genuine and may be given evidence in court proceedings. So a typing certificate provided by a typing institute may be given in evidence without calling the proprietor as witness to prove that the person in question has such qualification.

Similarly as per the Section 20 of Evidence ACT 2031,any inquiry report prepared by anybody who is authorized to make such inquiry by law may be given in evidence in court proceeding. Such report must be duly presented and recorded in the office.

Leading question for Examination of Witness

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

Leading Question means “a question, which by itself suggests the answer as expected by the person, asked / put the same.

Bentham says “leading question as a question is a leading one, when it indicates to the witness, the real or supposed fact, which is the examiner, expects and desires to have confirmed by the answer.

As for example:

At time of commission of crime you were on the spot?
Did you she Mr. A on the spot?
Have you been friend of Mr. A since long time?
On the spot you did not say anything to accused?
Accused was attacking victims by Khukuri?

When leading question must not be asked:

Generally leading question must not be asked in Examination in Chief or in Re-examination except with permission of the court. The court shall permit leading questions as to matters which are introductory or undisputed or which have in its opinion, been already sufficiently proved.

Objection to leading question:

Adverse party can oppose to ask leading question during the Examination in Chief or Re-examination. Objection to the leading question is not that they are illegal but only that they are unfair. The rule excluding leading questions is intended to prevent unfairness in the conduct of the enquiry. The court has absolute discretion to allow or not leading question.

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.

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.