TyroCity: Evidence Law Notes

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.

Confession

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

A confession is a statement implicating him/her that the crime in question or alternatively he/she must have admitted all real relevant facts which are connected with the crime under consideration. In the case of HMG. VS. Jimidar Kurmi Supreme Court of Nepal has made an observation that If the accused has confessed his guilt before the police voluntarily without exhibiting any resistance it may be taken as evidence.

As per Sir James Stephen ‘a confession made at any time by a person charged with a crime stating or suggesting the inference that he/she committed the crime. Confession are special form of admissions. Thus it is popularly said that “All confession are Admission, but all Admission are not Confession.”

It is a rule of universal law that’ a person may convicted on the basis of his/her confession made in judicial proceeding. The underlying principle is enshrined in two Latin Maxims as stated below:

1. Confessio in Judicio Omini Probation Major Est:
It means confession is judicial proceeding is greater than any other proof.

2. Confessio Facta in Judicio Est Plena Probatio:
It means confession is absolute proof.

Indian Supreme Court has made remarkable decision in the case of “Palka Narayan Swami vs. Emperor “that a statement made by an accused which must either admits in terms of offence or any rate substantially all the facts which constitute the offence. It means that confession s the kind of admission which refers to the acceptance of all the facts that constitute the offence. The expression ‘confession ‘ means a statement made by an accused admitting his/her guilt .It is an admission or acknowledgement to commission of an offence.

Classification of Confession:

Confession can be divided in two categories:

Judicial confession
Extra judicial confession.

Judicial confession:
Confession made before the court is judicial confession .Guilty plea in plea bargaining is judicial confession. The court relies upon it unless there are reasonable doubts to it.

Extra Judicial confession:
Confession made by the accused before somebody outside the court. Such person may be the police, person in authority, friends, neighbors or others. As to police and person in authority the conditions on what ground confession is admissible has already been discussed above so far as the other persons are concerned confession can be taken as evidence if the court is of the opinion that it is voluntarily and free from the influence of torture. In Nepalese practice the prosecution has pay little attention on this point and are very rare instances in which such persons like friends or neighbors produced in the court to give evidence against the accused.

Generally, Nepalese court accepts, confession made before the police if it is of the opinion that it is made voluntarily .If the courts find proof of torture, against the accused it has always rejected the confession to be taken in evidence. But in India confession made before the police is inadmissible at all cost. Even confession made during police custody is inadmissible.

Legality of Confession:

Confession, whether it is judicial or extra-judicial, must be clear and unequivocal. No reliance can be placed on confessions, which are in general or vague terms. The judicial confession of an accused is good evidence and he/her can be convicted on the strength of it. Law does not require that a confession must be corroborated before it can be acted upon. It is the duty of the court to decide whether it believes a confession or not. The Evidence Act 2031, provides for confessions to be an important part of the evidence to convict the accused provided, however, that is obtained without use of torture or fear or undue influence. The Interim Constitution of Nepal 2007 guarantees protection to every individual against physical or mental torture during detention for investigation and such protection include the right against self-incrimination.

Confession is relevant only if it is made by the accused voluntarily without being influenced by inducement, threat or promise of any kind. According to sec. 9(2) of evidence Act 2031 confession is relevant if it is proved as follows:

He must have made it in his consciousness.
He must not have been influenced with inducement, threat or promise from person under authority.
He must not have nor made it under the pressure of torture to himself or somebody else.
He must have made it in his consciousness:
That voluntariness is the essence of confession and person in authority denotes those persons who have legal right to persecute the offender .Therefore , it includes police, victim of the crime, public officials who are vested with the right of investigation of the crime .In the case of Bir Bahadur vs. Padan Lal Supreme court of Nepal has observed that “If any accused confesses his guilty before the police as well as in the court, the claim that he was tortured to extract confession in the police cannot be entertained.”
He must not having influenced with inducement , threat or promise from person under authority: A confession to be admissible in evidence ; it must be free and voluntary. If it proceeds from remorse and a desire to make reparation for crime, it is admissible. A confession made by an accused in criminal proceeding is irrelevant ,if it is caused by any inducement, threat or promise.
He must not have nor made it under the pressure or torture of himself or somebody:

Record of the statement of Suspect:

Interrogation of the arrested person starts after the arrest takes place. As the State Case Act [2049] requires the interrogation be carried out in presence of the government attorney.

The statement of the detainee amounting to confession forms a good evidence for conviction in Nepal, provided that it has not been extracted by use of force, coercion, inducement or torture or inhuman treatment. But in fact the entire Nepalese criminal justice system is based on confession. In Nepal more than 80% criminal cases adjudicated from the court under the basis of confession.

The confession and the admission are not the same thing .Evidence Act 2031 of Nepal neither talk about definition or differentiation of both. But Indian Evidence Act 1872 has mentioned both term confession and admission and also clarified these two terms. As a source of evidence , admission and confession are different things and they have different evidential values. To accept certain fact relating to the crime can not be counted as confession. In the case of Miss Marshakali Kaski on behalf of Jefrelong vs.Tribhuwan Airport and others made land mark observation stating that ‘accepting certain fact of the case ‘ is not confession. Similarly in the case of State vs. Porter, U.S.Supreme Court held that establishment of crime depends upon other facts and conditions. Hence , in admission , the conviction of crime may or may not be include. Learned people have symbolized that statement is ‘Genus’ admission is ‘Species ‘and confession is sub-species.

However , the context is different in the British law.Britain, there is no differentiation between admission and confession. They only recognized the difference in words. The Section 9 of British Evidence Act,1967 has mentioned confession as the evidence. In this context ,Walker said that ‘the distinction between admission and confession largely one of terminology .The Evidence Act 2031, of Nepal is not clear regarding confession and admission .Neither it has mentioned the terms confession and admission nor does it clearly make any demarcation between them. Thought , the Act seems too follow British view , the judicial interpretation follows Indian view. It is because the Evidence Act , 2031 has treated both confession and admission as the single term, i.e. statement made by party to the litigation .So the legal aspect often creates confusion which ultimately obstruct delivering of justice.

[1] HMG vs. Jimidar Kurmi NKP2027 P.61).

[2] AIR ,1939, P.47

[3] The Indian Evidence Act 1872, Sec.25 and 26

[4] NKP 2021, P.182

[5] Analysis and Reform of the Criminal Justice System in Nepal-CeLLRd, 2057

[6] NKP 2034, P.138

[7] State vs.Porter, 32/135,Wigmore ,f.821

[8]Prakash Washti, Evidence Law,4th edition,2053(Kathmandu, Paribas Prakashan), p.122

Historical Development of Evidence Law in Nepal

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

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]

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

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.

Evidentiary value of Expert Witness

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

Normally witnesses are not entitled to give their opinion in any proceedings. They should tell whatever they see or observe but Section 23 of Evidence Act 2031 provides for admission of opinions of different types of Experts in court, and the value to be given on such opinions as follows;

If court has to form an opinion of foreign law, science, art, handwriting or finer impressions, it may take the opinions of experts of such subject as evidence.
If court has form an opinion on handwriting of a person, it may take opinion of a person who has had opportunity to see handwriting and is in a situation to identify handwriting as evidence.
If court has to form an opinion as to relationship between persons, it may take as evidence the opinions of people who have special knowledge of relationship.
If court has to form an opinion as to meaning of certain words placed in certain places , it may take the opinion of person having special knowledge of same as evidence.
Such opinions are however to be admitted as evidence only if an expert comes and testifies in the court.The expert’s opinion is only piece of evidence and cannot be taken as substantive piece of evidence since it is to be judged along with other evidence. In other words, expert’s opinion must be corroborating with the other evidence. As for instance, report of handwriting expert is not admissible in evidence in the absence of formal proof. In the case of Mubark Ali vs.State of Bombay, the Indian Supreme Court laid down that a witness must confine himself to the facts and not to state of his opinion. But according to Section 23(7) of Evidence Act 2031, author of an article or book need not be present in the court in person for the article or book to be admitted as evidence. And also , if the Post Mortem Report does not contradict with other facts collected during the course of investigation or if the opponent does not challenge matter in court, the Expert need not come to the court.

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.

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.

Dying Declaration

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

The word dying declaration means a statement written on verbal of relevant facts made by a person who is dead or a dying declaration is a declaration written or verbal made by a person , as to the cause of his/her death or as to any of the circumstances of the transaction , which resulted in his/her death.

Oral or written statement made by person other than the witness which is testifying are not receivable to prove the truth of the facts stated .Evidence of such statement is said to be hearsay evidence .

That means facts are proved primarily by witness. Each witness must give evidence only of matters within his/her own knowledge.

Dying declaration is no complete unless full names and address of the persons involved are given in it. Therefore ,only because the deceased in his/her dying uttered first name similar to that of the accused , it was not proper to accept the persecution version based on such incomplete dying declaration.

Evidence of dying declaration is admissible not only against the person actually causing death but also against other persons participating in causing death.

Ground of admission of Dying declaration:

Dying declaration is of the utmost importance and the evidence as to it should be as exact and full as possible .The general rule is that hearsay evidence is no evidence and is not admissible in evidence. But dying declaration is admissible for the following two reasons.

As the victim is sole eye witness , exclusion of his/her evidence defeats the ends of justice.
Declaration made by a person under expectation of death are presumed to be true.

Underlying Principle or Maxim:

The admissibility of dying declaration is based on the maxim”Nemo Moritur Praesumntur Mentiri” means a man will not meet his/her maker with a lie in his/her mouth .In other words, a person who is about to die would not lie. Truth sits on the lips of a person who is about to die. Such person would not lie , because he/she has to face his /her Maker, the Almighty, in the other world. This is the reason why dying declaration is made admissible under the Section 11 of Evidence Act 2031.

Though dying declarations are not statements made on oath and no cross examination is possible , yet because of the solemnity of the occasion, which ensures truth more than a positive oath they are received in evidence. Absolute guarantee of truth cannot be expected even in case of statements made on oath in a court.

The another reason for admissibility of dying declarations in necessity. Where it is the only evidence available under the circumstances, rejection of it may result in injustice. The person , being no more in the world cannot be called in the court to testify and other evidence is not available to help in determining the truth.

Condition for admissibility of dying declaration:

For the admissibility of dying declaration , the following conditions are to be satisfied.

The declarant must have to died:

Dying declaration to be admissible , the declarant must be dead. If the declarant survives, it is not admissible under the Section 11 of Evidence Act 2031 but it will admissible as a corroborative evidence. In the case of Ram Prasad vs.State of Uttar Pradesh the Supreme Court of India has observed that “Dying declaration was recorded by the Judicial Magistrate but the declarant survived. It was held that the statement could not be used under the Section 32 of Indian Evidence Act 1872 but it could be used to corroborate his evidence under the Section 157 of the Evidence Act.

1. Injuries must have caused the death:

The declarant must have been dead as a consequence of the injuries inflicted , but not as a consequence of some other reason or ailment. In the case of Sunder Joshi vs.HMG.the Supreme Court of Nepal has observed that “the incident took place on 2038 – 06 -22.The victim was admitted in to the hospital on the next day .She lodged the First Information Report(FIR) as to cause of her injuries in the morning and died by the night on the same day. Supreme Court has taken FIR as dying declaration”.

2. Statement as to cause of death or circumstances leading to death:

The statement must relate to the cause of his/her death or circumstances of the case resulting in his/her death .Statements which relate the cause or circumstances not responsible for his/her death are not admissible as dying declaration under the Section 11 of Evidence Act 2031.

3. Cause of death must be in question:

The statement as to cause of death of the deceased person will be relevant only if the cause of his/her death is in question.

4.The statement must be complete:

To be admissible in evidence, dying declaration must be complete. This is a matter of common sense because the deceased might have added something in contradiction to things already stated. It is therefore, necessary that incomplete declaration should not be received in evidence.

In trials for murder the dying declaration of the victim made under the sense of impending death, is admissible to prove the circumstances which are supposed to guarantee the truth of the statement in the solemnity of the occasion, when the sense of impending death created a sanction equal to the obligation of an oath.
There must have existed a “settled, hopeless expectation of death” if death overtakes the deceased so rapidly that he/she has no time to reflect or know that he/she is dying , any statement by him/her as to the cause of death is admissible as a dying declaration [Rvs.Bedingfield(1879)14cox34].
The person who is near to the death does not have any love, affection, hatred. They speak truth.
The crime is generally done with the plan, so other witness may not be found in such places at this time. The victim himself/herself will be the best evidence for their death.
A person who makes a dying declaration must, however, be competent at the time he/she makes a statement, otherwise, it is inadmissible

Evidentiary Value of Dying Declaration:

The evidentiary value of the dying declaration will vary according to the circumstances of a particular case in which it is made. While considering the value of dying declaration, the court take into account the whole but not part of it.

Some leading case on this point are-

Pasang Sherpa vs. Nepal Government, the Supreme Court of Nepal has observed that “Defendant has burnt his wife. Before death, deceased (wife) has said that her husband spread kerosene over her body from the stove kept in to the kitchen. He lit the fire and burnt and started to dance. She called for water but he kept dancing”.

Similarly in the case of Government of Nepal vs. Amber Bahadur Ale the deceased said that her husband came drunk and started to fight with me and spread kerosene oil over her and lit the fire.

Dying Declaration is not direct evidence:

Dying declaration is not direct evidence because the original author of the statement was not found on the earth when they made the statement, they did not make the statement in the face of the entire world but in the privacy which might have emboldened him/her to say what he/she would not even hint at in public. There was no opportunity for his/her opponent to test his/her statement by cross-examination[Phipson and Elliot, Manual of the evidence.Dying declaration is not the direct evidence so the reliability of the witness is not seen as compared to direct evidence.

Expression made by a person who cannot found:

Section 12 of Evidence Act 2031 has made elaborated provision stating the conditions when an expression made by person who can not be found is relevant.

The person who cannot be found means such type persons as

Who is dead?
Who has disappeared and not known to anybody
Who has been interfering by his/her opponent from attending at the court
Who is out of jurisdiction of the court?
Who cannot be compelled to give evidence such as privileged witness
Who cannot be procured easily without an amount of delay or expenditure

[1] S.P. Tyagi ,Manual of the Evidence ,(Delhi, University Law Publiching,2002),p.233

[2] V.R.Manohar, and Dhiraj Lal,,Law of Evidence ,19th edition(Mumbai:Wadhwa and Company Nagur Publication,2002)p.139

[3] Ram Prasad vs. State of Uttar Pradesh, AIR 1999 SC1969]

[4] Sunder Joshi vs. HMG,NKP, 2044,p.577]

[5] Gyanendra Br. Shrestha,Ain Sagraha(comment on acts with precent),Kathmandu , Pairavi Prakashan 2061,p.81,103]

[6] NKP,2065,p.326

[7] NKP,2064,p.1443]

[8] Universal Law Publishing Co.Pvt:2001) p.233,234

Privileges of Witness

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

Definition:

Certain witnesses are immune from giving evidence or no one can compel to certain witness to give evidence .This is known as privilege of witness. The term privilege is derived from the Latin word ‘privilege’ which means special legal right, advantage, or immunity belonging to a person, class or office. The privilege of witness is the right of a witness to withhold evidence to disclose certain matters. The communications that can not be compelled to be disclosed privilege communication. The principle of privilege of a witness is based on the grounds of convenience and public policy. Privilege is a legal freedom on the part of one person as against another to do a given act or legal freedom not to do a certain act. Privilege is an exemption from some duty, burden or attendance to which certain person are entitled.

As per Moonir, Privilege of witness means, “right or duties to refuse , disclose a fact”. Similarly Walker said that, ”Privilege of witness is a rule of evidence, whereby a witness may be rejected in refusing to answer a question or produce a document or answer on interrogatory. Phipson said that there are mainly three reasons behind the privilege of witness as

National Security,
b.Proper function of public service and

c.Information for the detection of crime.

Classification:

There are certain circumstances in which certain persons are not compelled to testify/give evidence .Any statement made by such person is said to be privilege. The Evidence Act 2031 of Nepal signifies about the privilege of witness are:

1. Family privilege:

Family privilege person like father and mother, husband and wife, son and daughter cannot be compelled to be witness against each other. This is known as family privilege, in order to keep family relationship intact, confidential, loving, the law has adopted this rule.

2. Matrimonial privilege:

Husband and wife are not compelled to give evidence against each other on matters which he/she communicated the other in the source of their married life. In order to insure confidentiality, love and affection between husband and wife, the law has guaranteed this sort of privilege .This privilege continuous even after the death of husband or divorce between the parties .The evidence shall be given only by the consent or permission of husband or wife. This provision has the exception where evidence shall be given by husband or wife if there is case between them and if husband or wife commits any crime against his/her husband or wife. In the case of Stillman vs. Stillman, American Supreme Court observed that matrimonial privilege is founded upon sound policy. Those living in the marriage relation should not be compelled or to betray the mutual trust and confidence which such relation implies.

3. Judicial privilege:

Judges or Magistrates are not compelled to give evidence on matters, which are related to their professional activities. Judges or Magistrates may not be compelled to answer on those matter where he/she has expressed the matter being a judge. However, if any superior court orders to express such matter then he/she must express. Also, if any act occurs in the court before the judge then the judge may be taken as the witness of such act. In order to ensure independence of judiciary and allow the judge to act freely, the law has adopted this rule.

4. State Privilege:

This kind of privilege deals with the non-confidential matters related to the state administration. Until and unless the concerned authority does not give the consent, such confidential matters may not be revealed. Documents related to security matter or diplomacy is some examples of such documents. They can not be compelled to give evidence, if it is against the interest of the nation. In formers relating to revenue proceeding or crime are protected under this privilege. In the case of HMG. vs Pasang Tsi Tibetan Bhote, the Supreme Court of Nepal made very remarkable decision, one which brought the amendment in the Evidence Act 2031 regarding the privilege of the police officer not to disclose the source or information of the crime. and similarly in the case of Damodar Subedi vs. Ministry of Water Resources, Supreme Court of Nepal held that the information which is to be kept confidential cannot be forced to be revealed according to Article 16 of the Constitution of the Kingdom of Nepal 2047.

5. Professional Privilege:

Legal counseling between lawyer and client are matters, which are not liable to exposure by the lawyer without express permission of the client. The client also can not be compelled to express anything that took place between hire and the lawyer. In order to ensure that the client be free to tell everything to his/her lawyer and received proper legal advice thereon, the law has adopted this rule. However, this privilege is not available in the following two situations as (1)if the client has come to the lawyer to seek such advice which is designed to commit a crime. Such as A comes to B, a lawyer and says that I have prepared a forged document and I want to make case against C. This communication does not come within the privileged and (2)if the client has committed further crime after the appointment of the lawyer to his/her knowledge, he/she can not claim privilege on it. The second crime is liable to expression. Neither the lawyer can advice his/her client to commit and act which is crime .Apart from the privileges state above witness can be compelled to answer all questions put to him before the court. He/she can not be withheld for answering any questions on the ground that if may expose him/her to criminal charge. But he/she can not be prosecuted on the basis of such answer only.

6. Privilege against self-incrimination:

No person is bound to give evidence against himself/herself. The right relates with the right to remain silence of the accused and the right against self-incrimination of the witness. A witness may refuse to answer questions or give documentary evidence only if the answer or document would incriminate the witness. Similarly, the accused has the right to deny answering the question which would intend to incriminate him/her. However, the accused does not hold the privilege not to give his/her finger prints, photographs etc. A person who is suspected of a crime may be compelled to testify before a grand jury, a legislative body, or an administrative board. The person must appear and answer questions, but he/she may claim the privilege against self-incrimination when necessary. Also, if the accused reveals a part of the fact, then he/she is obliged to reveals a part of that fact, then he/she is obliged to reveal whole the fact. Confession sometimes is also regarded as the incriminating statement if not corroborated by the other independent evidence. In the case of Rajendra Birahi vs.HMG, The Supreme Court of Nepal declared that an accused should not be convicted on the basis of confession made by him in police custody unless corroborated by other independent evidences. If the doubt has been has been raised that the statement was not prepared in verbatim and in the case of Chandra Bahadur vs.HMG the Supreme Court has also laid down that it is for the prosecution to establish the guilt of an accused and that the accused need not make any self incriminatory statement because he has the right to remain silent. One cannot be regarded as an offender due to remaining silence because the constitution had guaranteed the right against self-incrimination and so no person is compel to say anything against him/her. But if the accused voluntarily say something then that can be taken as evidence on the support or against his/her. He/she is not made liable for remaining silence but if the collected evidence shows the person liable for the crime done then he/she will be made liable for the crime through remain silence.Similarly in the case of Miranda vs. Arizona the U.S.Supreme Court has protected the right against self –incrimination where the accused may deny answering the question or may refuse to give the documentary evidence which would intend to incriminate the accused himself/herself.The Interim Constitution of Nepal (2007),Article 24(7) also relates with the protection of accused or the witness from those questions which would intend to make these people liable of the punishment.

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.

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.