TyroCity: Evidence Law Notes

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.

Presumption

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

Presumption is an inference, which takes place in the absence of absolute certainty as to truth or falsehood of a fact. In other words, presumption is an inference drawn by the court as to the truth of a particular fact, from other known or proved fact. The presumption has direct relevance with burden of proof. It shifts burden of proof on the other party to prove otherwise against the party in whose favor the presumption exit.

Classification of Presumption:

Presumptions may be classified as follows:

1. Presumption of Law(Shall Presumption):

Sometimes the law defines certain situations to be presumed in a certain way. The law makes such presumption to make our civil life easy and practical. Section 6 of Evidence Act 2031 deals with presumption of law. It’s refutable presumption that means the aggrieved party must prove otherwise against the presumption if he/she is to win the case. As per the Sec.6 of Evidence Act.2031 has categorizes Presumption of law as

2. Presumption of undivided property:

If more than one co-partner is living together , the law presumes that the property is in possession of one of the co-partner is divisible property among other partners equally.

3. Presumption of joint ownership:

If two or more person is in joint possession of any property , the law presumes that each and every person has equal claim over the property.

4. Presumption of genuinity as to public documents:

The law presumes that each and every public document prepared in course of public duty and kept is public record is genuine and accurate a it purports to be. The aggrieved party must prove otherwise to rebut this presumption. Until it is so done the court acts upon it.

5. Presumption of legitimacy:

Any child begotten during lawful wedlock is presumed to be legitimate child of the same couple. Likewise child begotten within 272 days of death of the deceased husband is presumed to be legitimate child of the deceased husband and similarly child begotten within 272 days of divorce is presumed to be legitimate child of divorce.

6. Presumption of genuinity of published and certified document:

If any document purports to publication of any government, or if any document is certified by any public official without his/her authority. The law presumes that such publication or certification is genuine as it purports to be on the face of it.

7. Presumption of genuinity of law or judicial decisions published by foreign government:

If any document which purports to be law or judicial decision is published by foreign government , the law presumes such document to be genuine and accurate. It is taken as evidence on the same presumption. The aggrieved party must bear burden of proof if he/she wants the court to be believe the other way.

Presumption of Fact (May Presumption):

Sometime the law gives option on the court. In such situations the court exercise its prudence and practicality and infers certain facts in favor or disfavor of either party to the litigation . In such situation the aggrieved party must adduce evidence to bring the court in his/her favor. Section 7 of Evidence Act 2031, deals with presumption of fact .The law has specified three situations as follows;

1. Presumption of theft:

If a person is found in possession of stolen property the court may presume that he/she either a thief or a person dealing with stolen property .The court may not presume such fact it is proved that the accused may come across of such property because of his/her nature of business.

2. Presumption of adverse interest:

Any person who is in possession of any document if does not produce before the court when ordered .Court may presume that the document if produced relates to adverse interest of such party. The court presumes this way only when it is prudent to do so.

3. Presumption based on logic and experience:

The court may presume any think which is pertinent to the given situation on the strength of its prudence and experience. Everything cannot be brought and proved before the court. There may be several such situations in which the court presumes certain thing at the proof of some other things.

Mixed Presumption:

Besides presumptions of fact and of law a third category of presumptions is also recognized which is referred to as mixed presumptions of law and fact. They lie on the boundary line between the other two, i.e. and presumptions of fact and presumptions of law. They consist chiefly of certain inferences which from their strength, importance or frequent occurrence and constant recommendations by judges become, in course of time, as familiar to the courts as presumptions of law.

Presumption of law directs the court to presume certain fact mandatory on the given situation . So the court shall presume such fact if the specified situation is before the court .Presumption of fact defers from presumption of law in the sense that presumption of fact is at option of the court itself. The court is not obliged to presume any fact mandatorily under it. It may presume certain fact if it thinks it appropriate in the given situation. Thus it depends upon the perceptions of the court, its prudence and experience. Both of these perceptions are refutable in court proceeding .The aggrieved party must give evidence, if it wants the court think otherwise. Conclusive proof is another type of presumption which is irrefutable.

The law presumes that a child under 10 cannot form guilty mind, the proof of under agedness of 10 years is sufficient to make believe the court that the child is innocent., the aggrieved party can not give evidence that even if the child below 10, he/she did the act maliciously, with ill will or under cruel intention. So conclusive proof is known as fiction of law. It is irrefutable presumption of law. The two types of presumption of law stated in the text of burden of proof are as follows:

Presumption of death: Any person who is not known to his/her close relations for more than 12 years of period is presumed to be dead for the purpose of law.

4. Presumption of ownership:

Any person who is in possession property is presumed to the owner of that property until otherwise proved.Indian Evidence Act 1872 has given wide range of description relating to presumption of the public document and also presumption of fact in sec.79 to 90, which does not differ with the provision mentioned in the Evidence Act 2031.Sec. 90 has stated that any document which is 30 years old and is produced from proper custody .The court regards such document as genuine and the writing and attestation there in is genuine as per the law.

The law presumption relates to burden of proof. Presumptions whether of law or fact are always refutable by the party on the strength of evidence, otherwise it may be the basis of decision.

[Sec.32 of Evidence Act 2031]

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 is 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.

** 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.

Facts recorded in public documents

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

Any document, which is prepared by the public officer in execution of his/her official duty is regarded as public document and it may be given in evidence to prove the court in such document.

As per the Section 13 of Evidence Act 2031, any books or judgment of the court published by the government is regarded as authentic document and they may be govern evidence in any court proceeding.

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.

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.

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.

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.

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.

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.

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.

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.

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.