TyroCity: Evidence Law Notes

Criteria to Become a Witness

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

Who can be a witness?
Any person , who is able to understand question put to him/her and who is able to give intelligible answer to it, is regarded as a competent witness , if he/she comprise the requirement stated above. A dumb person can relate his/her story through signal or in a written form. This is also regarded as oral evidence.

Who can be the best witness?

Evidence given by a witness, who has good character or high moral standard carries great weight age in any court proceeding. In order to insure the capability of the witness, witness must encounter the following requirement of the law as

He/ she must take oath before giving evidence.
He/ she is subjected to cross-examination by his /her opponent.
He /she is liable to punishment under perjury if, he/she speaks untruthful story in the court.
His/her gesture or mode of presentation is observed by the court. This is very much necessary to see how far he/she is confident in his/her expression and spontaneous in his/her presentation.

But in England every one can be a witness. As per the Criminal procedure (Attendance of witness Act) 1965 states that all same adults not subject to sovereign or diplomatic immunity are competent and compellable to give evidence subject to the exception relating to the accused and his/her spouse.

Child Witness:

A child of tender age may be allowed to testify /give evidence if the Court is satisfied that he/she has capacity to understand the question put to him/her and gives rational answers to those questions. The Indidian Evidence Act 1872 prescribes no age limit as to competence of giving evidence. Even a child of 3 or 4 years old is competent to give evidence provided; he/she is competent to give rational answer to the questions put to him/her. A child witness below the age of 12 years need not administer oath before giving evidence, since he/she is ignorant of the moral significance of the oath. Generally the court entertains the evidence given by the child witness , conducts a test known as ‘Voire Dire Test’ by putting certain questions unconnected with the case like who are you? What is your name? What is your father name? Where do you live? If the child gives rational answer to such questions, the court satisfies that the child is a competent witness and allows putting questions to the child, pertaining to the case. In the case of Krishna Prasad Shimkhada vs. HMG, The Supreme Court of Nepal has observed that generally court can not rely the statement made by the lunatic and child witness.[4]but in the case of Gyan Prasad Rai vs. HMG, the Supreme Court has observed that there is no any situation the child will speak lie, so the statement made by the child shall be admissible. In early days child witnesses were not admissible in England but in the case of R.vs. Brasier court has made decision about the admissibility of child witness.

Value of Child Witness:

A child of tender age does not take oath; neither can he/she be cross-examined, rigorously. If his/her story proves untruthful, he/she can not be penalized under perjury. Therefore, evidence given by child witness is always regarded as week evidence. It must be collaborated by some other evidence in order to rely upon it. Even an accomplish can be a witness but his/her evidence carries less weight age and requires corroboration. The same hold good if an accused present himself/herself as witness.

Dumb Witness:

Evidence given by the dumb witnesses is admissible. A deaf and dumb witness cannot speak and understand the question put him/her. Earlier, it was thought that deaf and dumb person were regarded as idiots and were not competent to give evidence. However, modern science reveals that deaf and dumb person are mush more intelligent than any other normal person, and are competent to give evidence. Thus , a person , by reasons of dumbness or otherwise , is unable to speak may give evidence by means such as by writing or by signs.

According to Section 119 of Evidence Act 1872 of India,” A witness who is unable to speak may give his/her evidence in any other matter in which he/she can make it intelligible , as by writing or by signs; but such writing must be written and the signs made in open court. Evidence so given shall be deemed to be oral evidence and it is admissible.”

Number of witnesses:

The Evidence Act 2031 does not declare any particular number of witnesses but general practice is not less than two witnesses in any case. It is not mandatory. If we see the provision of Indian Evidence Act 1872, also does not talk about any particular number of witnesses in any case. How many witnesses are necessary for the proof of a fact is wholly left to the judgment of the court. The Supreme Court of Nepal has in number of cases sustained convictions on the basis of the testimony of a sole witness. Section 134 of the Evidence Act 1872 of India says that it is not the number of witnesses that is important but the quality and credibility of the witnesses that counts.

Burden of proof on prosecution, defendant and plaintiff

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

Burden of proof on prosecution:

Section 25 of Evidence Act 2031 lays down that in criminal cases the prosecution must bear burden of proof to establish the guilt. He/she must prove it beyond the doubt. The accused need not prove anything on his/her part to show his/her innocence. He/she may remain silent throughout the trial and observe the case being proved against his/her on the strength of evidence. In case of any doubt and he/she is entitled to acquittal. This is general rule.

Burden of proof on the plaintiff:

Section 26 of Evidence Act 2031 states that in civil case burden of proof lies on the plaintiff to establish his/her claim. The court hears the defendant at the same party with plaintiff and adjudicates the case on balance of probability.

Burden of proof on the defendant:

Section 27 of the Evidence Act 2031 lays down that in criminal cases the defendant puts forwards his/her defense , if he/she chooses so, to show that he/she is innocent or he /she is not liable fully for the consequence of charge made against him/her. Therefore , he/she may plead self-defense , accident or provocation in order to immune himself/herself from punishment or mitigate it as per the merit of the case. If he/she does so the onus lies on him/her to prove it.

Similarly in civil cases the defendant must bear burden of proof if he/she wants the court to believe that the liability attached to him/her has already been partly or fully discharge in favor of the plaintiff. In other words it is know as adverse burden of proof.

Classification of cross-examination

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

There are two different types of cross-examination as

Supportive (Concessional Based) and
Discrediting

1. Supportive :
This type of cross-examination is employed when one wants to ask questions and get answers that support and advance the case. In supportive cross, questions are not used to attack, pillage and plunder the witness. Instead, cross is used to obtain favorable information,e.g. admissions, fill in- gaps in the story facts etc. from the witness. If one can develop favorable evidence from the opposition’s witness/he/she can then argue,”Their own witness said (insert the testimony favorable to your position).”It adds credibility to the evidence if it comes from an opposing witness. If someone is gong to rely on the evidence from an opposition witness , it may not make sense to attack the credibility of that witness. Occasionally , the testimony on direct may be so helpful to the theory of the case that he/she simply have the witness repeat it on cross and pass the witness. In most instances, the favorable evidence that will accrue from opposition witness will come in small increments.

2. Discrediting Cross-examination:

A discrediting cross-examination occurs when one attempts to discredit the believability of a witness, factual testimony by showing that it does not jibe with common sense or with what other say. He/she may want to use cross to show what the witness does not know or what the witness did not do in investigation. He/she may want to employ cross to impeach the witness. Evidentiary procedure and rules provide a number of traditional modes of impeachment. For example , a witness may be impeached by proof of inability to understand the nature and obligation of an oath to tell the truth.

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.

Meaning, Nature & Scope of Law of Evidence

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

The word ‘evidence “is derived from the Latin word evider, which means to show clearly; to make clear to the sight; to discover clearly; to make plainly certain ; to ascertain ; to prove. So evidence is about proving or disproving facts in issue, the means by which such facts come to be proved or disproved.

Black’s Law Dictionary has defined the evidence as something including testimony documents and tangible objects) that tends to prove or disprove the existence of an alleged fact.E.g.the bloody glove is the key piece of evidence for the prosecution .Evidence is the demonstration of a fact , it signifies that which demonstrates makes clear or ascertains the truth of the very fact or p0int in issue.

Moonir states that “The term evidence in its legal and general acceptation includes all means by which alleged fact is proved or disproved to the satisfaction of the court”.

Phipson states that –Evidence means the testimony whether oral, documentary ,real which may be legally received in order to proved or disproved some fact in issue”.

As per the Indian Evidence Act,1892 Evidence means;

All statements which the court permits or requires to be made before it by witness in relation to matter of fact under enquiry such statements are called oral evidence.
All documents produced for the inspection of the court, such documents are called documentary evidence.

Black stone says that which demonstrates, makes clear or ascertain the truth of facts or points in issue either or one side or other .

Evidence Act of Nepal 2031 does not define about the meaning or definition of evidence.

In conclusion evidence means to prove or disprove, fact in issue is evidence and in another word it called relevant fact.

General principle of the law of evidence:

The evolution of evidence law is based on certain basic principles . These are knowing as “five principles” as

Best evidence must be produced in all cases: Where there is possibility of availability of best evidence the court insist on its production. The court would not consider other inferior evidence . Direct evidence is regarded as best evidence.
Hearsay is no evidence: Generally hearsay evidence is discarded in the trial , where there is possibility of availability of direct evidence. So it is the negative expression of the first principle state above. There are several exceptions to this rule.
He who sets the law in motion must establish his case himself: The rule concerns with burden of proof .The Prosecution in criminal proceeding and the Plaintiff in civil proceeding must establish his case by evidence before hearing the other party.
In criminal proceeding guilt must be proved beyond the reasonable doubt .Where there is doubt benefit of doubt goes to the accused.
In civil proceeding the case may be adjudicated on balance of probability: The party wins the case who is able to adduce more evidence compare to his opponent.

Nature and scope:

Evidence law is generally used in court. Its scope is very much high and broad. Generally it comes to use in two sectors as Judicial and Quasi Judicial.

Judicial Sector:

1. In civil case: Law of evidence is playing vital role. If Plaintiff comes to court and ask for Justice then he/she shall give evidence. If can not able to produce evidence , then he/she lost his/her case. In other hand if Plaintiff produced evidence against the defendant then defendant shall also produce his/her evidence against plaintiff.

2. In criminal case: Law of evidence playing most important role in criminal case as well as civil case. If anyone frames charge-sheet against anyone, the framer shall produce evidence.If someone takes plea of innocent then he/she shall produce evidence of innocence.

Quasi Judicial Sector:

Administrator has jurisdiction to see certain case. As per the Interim Constitution of Nepal 2007(2063) Article …. Called them Judicial Institutions. They have to follow due process of law; it means evidence law is necessary them too.

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

Special procedure relating to examination of witness

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

Witnesses are examined in three stages. They are

Examination – in- chief,
Cross- examination and
Re- examination.

Examination-in–chief
At this stage the lawyer are entitled to put such questions which are relevant to the fact in issue. They can not put leading question. Questions, which suggest answers, are regarded as leading questions, whose usual answer would be in yes or no form. However leading question may be asked in the following two situations as

Where the subject matter is beyond controversy and
where the subject matters has already been proved in the court.

Witnesses vary in nature. Some may be talkative; others shy; lawyers must use their skill to bring out facts from the witness, which are relevant and important to their case. The must control talkative witness, while encourage to speak shy – witness.

Cross- examination:
Cross- examination starts after the completion of examination in chief and opponent lawyer has right to cross –examination. At this stage he/she is as liberty to put leading question to the witness. His/her questions may have been designed to test the veracity, credibility and accuracy of the statement deposited by the witness. Exposing his/her bad character may impeach the witness. It is one of the grounds to discredit the witness. Witness may be discredited by showing relationship between him/her and the litigant, by showing his/her interest in between him/her and litigant in the subject matter of case. He/she may be contradicted by presenting statement made by him/her or some other occasion. Cross-examination is double edged weapon which should be wailed with great caution. It is one of the most crucial part of the examination of the witness which may affect the out come of the case. According to Philip Wendel, it is double-edged weapon, if you know to wield, it helps to cut enemy’s neck. Otherwise, it cuts one’s own hand. When a witness is cross-examined, he/she may be asked any question which tends:

to testify his/her veracity (correctness)
to discover, who he/she is and what is his/her position and
to shakes his/her moral character

Re-examination:
After the completion of cross-examination the first presenting party has right to reexamination but he/she can not ask questions on new subject matter. He/she must be limited to the impact of cross-examination. He/she should try to make thinks correct which has been distorted in cross-examination. He/she can not ask leading question in re-examination except in the following situations;

If not objected by the adverse party or
With the permission of the court or
Already sufficiently proved matter (undisputed)

The other adverse party may further re-cross examine the witness.

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.

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

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.

Documents prepared at the time of investigation

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

Documents prepared by the authorities during the time of investigation of any crime are relevant. As per the Section 18 of Evidence Act 2031, documents prepared in the course of investigation are relevant only if the witness making such statement come to the court to testify himself/herself. However, in the following two situation the court may take recognize of such statement without coming the witness as its preliminary hearing whether to grant bail on the accused or not.

It is Postmortem Report and the opinion of the expert has conformity with other circumstance evidence. The same holds good if the opponent party does not challenge the opinion of the doctors.
If it is Syracuse Report , the witness need not to come to testify at preliminary hearing in the court.

Other types of fact

TyroCity.com — Sun, 18 Aug 2013 05:41:42 +0000

Admissible Fact:

Certain facts though relevant are not admissible on the grounds of public policy or privilege granted with the witness .Voluntarily confessed by an accused is admissible.

Corroborative Fact:

Facts, which are given in support of some other facts, are called corroborative facts.

Proof:

When evidence is proved a per the rule of the evidence it is regarded as proof. Document properly tendered whose signature is proved becomes a proof as to contents of document.

Conclusive Proof:

Certain facts are conclusive proof, which can not be denied , in legal proceeding .The law presumes that a child under 10 years cannot form means rea .Therefore any wrong committed by child under 10 years is conclusive proof that he/she did it innocently. Any case, which is finally decided by any competent court, is conclusive proof that the case got final decision.