TyroCity: Evidence Law Notes

Basis and underlying principle

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

The principle of estoppels is based on the principle of equity and good conscience. The object of the principle of estoppels is to prevent fraud and to manifest good faith amongst the parties .This principle is enshrine in the Roman Maxim’ Allgans Contraria Non Est Audiendus.’ It means ‘a man alleging contradictory facts ought not be heard.” This principle of estoppels was laid in the case of Pickard vs. Seers.

The object of the doctrine of estoppels is to protect the interest of a person who acted in good faith , believing the statement of another. It is based on the three moral principles as stated below:

No one can blow hot and cold in the same breath.
No one can take the advantage of one’s wrong ;and
No on can approbate(accept)and reprobate(reject) at the same time.

Essential Elements:

To constitute’ estoppel ‘the following conditions are to be satisfied.

There must be a declaration (act or omission) on the part of one person, intentionally causing or permitting another person to believe a thing to be true.
The other person (to whom the declaration is made) must believe that thing to be true.
There must be some act in pursuance of that belief.

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.

Statement given by Witness in other case

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

Any witness, who made any statement on previous occasion before any court and if such statement is relevant in subsequent trial, they may be given in evidence under the Section 17 of Evidence Act 2031.

As per the Section 33 of Evidence Act 1872 of India has made similar provision but it has made additional requirement that in order to be admissible of such statement such witness must be subjected to cross-examination on previous litigation.

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.

Examination of Expert Witness

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

Any expert who has provided their opinion, should come to the court and he/she has to face various type of examinations as follows;

1. Direct examination:

The Evidence Act 2031, Section 50(1) provides for the direct examination or examination in–chief. It is the first stage of examination where the party or attorney of the party as usually is the case in modern litigation, who calls upon the Expert Witness, examines him/her. So in cases, where the State is party, the Public Prosecutor first examines the Expert Witness.

Further, the reason for any party to call an Expert Witness is to furnish support for his/her arguments. But the asking of questions by any party or the lawyer of the party to his/her witness that will lead to the answer desired by him/her.

2. Cross – examination of Expert Witness:
According to Oxford Dictionary of Law, ”When the first examination is finished, the first Advocate sits down and the Advocate of other side, be it defense or prosecution, rises to cross-examine the witness. This examination of witness by the Advocate for adverse party is popularly known as cross – examination.

Cross- examination helps the judge to determine the evidentiary value of an opinion. The main objective is to test the accuracy of the statement made by an expert. Dr. Reddy observed that,” In doing this, the lawyer may try to weaken the evidence by showing that the evidence given is inconsistent, in accurate, ill- founded, contradictory and untrustworthy. The cross-examination need not be confined to the facts to which the witness testified in his examination- in-chief.

In cross-examination, an expert giving opinion must appear before court as witness. The opponent party subjects him/her cross-examination .The court must be convinced with the reliability of such opinion. The court does not follow all types of opinion blindly.

3. Re-examination:

Re-examination is the third stage of examination. The Evidence Act 2031,Section 50(2) states about re-examination of witness. First party of case or who asked questions first with the expert can ask or clarify certain question under the permission of Bench.

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.

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.

Plea of Alibi : Definition and Principle

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

Alibi is the Latin term , which means ‘elsewhere’. Alibi is a piece of evidence that one was elsewhere and alleged act took place, an excuse.

As per Oxford Dictionary Alibi means that a claim or the evidence supporting it , that when an alleged an act took place one was elsewhere or an excuse of any kind , a pretext or justification.

According to Ballentines Dictionary Alibi means that a rebuttal of evidence of the prosecution by evidence that the accused was elsewhere that the alleged scene of the offence at the time of offence.

Section 28 of the Evidence Act 1031 lays down 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 hold good if such situation does arise.

A defense that places the defendant at the relevant time of crime in different place than the scene involved and so removed there from as render it impossible for him/her to be guilty party.

These all definitions have lay down that Alibi means at the time of occurrence of crime he/she was not there. Plea of Alibi is the mode of defense taken by the accused that he/she was physically not present at a time of scene of offense by the reason of presence at another place. Alibi is different from all kinds of evidence; it is based on the premise that defendant is truly innocent. Thus Alibi is based on the theory that presence of else where is essentially is inconsistent of presence of accused at the place and the time of alleged occurrence and the participant in it.

Plea of Alibi is view as self defense or provocation. Basically legal burden lies on prosecution in criminal case and plaintiff in civil case. It does not means that defendant has no any burden of proof. The burden of proof lies on the party concerned as per the situation of the case .Usually the defendant does not legal burden in criminal case however they often have evidential burden. If defendant wishes to do more than merely deny the prosecution case and wishes to raise an affirmative defense that he/she will bear the evidential burden. Thus, in certain situation burden of proving a particular fact in issue may be laid by the law on the accused. Therefore, plea of Alibi is one of situation on which defendant has evidential burden to justify defense being consider seriously by the court. Once there is any evidence to support such ‘explanation’ than legal burden of disproving such explanation rest upon the prosecution.

Principle of Plea of Alibi:

Plea of Alibi is based on Roman principle ,”ei qui non negat incumbite probation”. It means who claims has to prove it not the party who negats.A person alleged too have done any act might introduce the fact that making it less possible that he/she was present at the time and place of the act and such facts are admissible even though they do not suffice to make his/her presence total impossible. Alibi if established is a complete defense to the charge of having committed the crime , the force of this defense is universally recognized. The principle of an alibi is that essential inconsistent with the presence at the place at the place and the time alleged, and therefore with personal participation in the fact. Thus the evidentiary fact is a new affirmative proposition consider as the factum probandum through it’s logical operator is negative one.

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.

General rule relating to examination of witness

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

Section 48 of Evidence Act 2031 states that , there are two type of rule regarding to examination of witness as General rule and Specific rule.

General rule: the general rules are as follows-
The witness must be administered oath before giving evidence.
All witness must examine, wherever possible, on the same day.
Where there is more than one witness, one witness must not be allowed to hear the other in the court.
The opponent party must be given opportunity to cross-examine the witness.
At the completion of the deposition the witness who has already been examined can not be re-examined without permission of the court. With the permission of the court he/she may examined on such matter which has been omitted in the first examination and this proceeding known as Tatimba Sabal.

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.

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.