TyroCity: Evidence Law Notes

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.

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

Basis and underlying principle

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

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

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

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

Essential Elements:

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

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

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.

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.

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.

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.

Principles of Physical Evidence

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

Basically physical evidence is based on certain principles. These are follows;

Principle of individuality:
Every object , natural or human made , has an individuality, which is not duplicated in any other object. It is unique. Neither the nature has not duplicate itself nor human can

This principle is contrary to common belief and observation. The individuality has been varied in certain fields. The most extensive work has been carried out in finger print. Millions of fingerprints have been checked but on two fingerprints, even from two fingers of the same person have been ever found to be identical. The law of individuality is fundamental importance of physical evidence in forensic science. Anything and everything involved in a crime, has individuality. Thus the culprit is unique, scene of crime is unique , his/her modus operandi is unique, evidentiary clues left over or picked up by the culprit are unique. And this uniqueness in different person to person, through the physical evidence , the criminal can be arrest by linking the crime with criminal.

2. Principle of Exchange:

Whenever two entities came in contact, there is exchange of traces mutually. This principle says that, when a criminal or his/her instrument of crimes come in contact with the victim or the object surrounding him/her, they leaves traces. Thus, mutual exchange of traces takes place between criminal, the victim and the object involved in rime. The rationality behind this principle is the 3rd motion of Newton. Which states that “in every action, equal and opposite reaction”.[Ibid].According to this principle , when criminal attacks upon the victim by own self or by the help of object , the body or the victims any thing re-act in same motion and at the time the traces is exchanged between each other. The traces of victims go on the criminals and the traces of the offenders remains in the body of the victim. By that traces the offender can be find out easily.

3. Principle of Progressive Change:

Everything changes with the passage of time. Nothing in this world is unchangeable, permanent or invariable. But the rate of change varies with tremendously with different objects. The criminal undergo progressive change. If he/she is not apprehended in time , that becomes unrecognizable. But even in this , some evidences are those types which never changes in their lifetime. Such as fingerprints, bone fractures, or other characteristics of the permanent nature like body fluids, body cell, DNA profile never exchange. So this principle demands that prompt action in all aspect of criminal investigation.

4. Principle of Comparison:

Only the likes can be compare. This principle governs the physical evidence is comparison of the similar things. According to this principle , the evidence found in scene of crime is compared with the similar things before he/she had done. Generally it emphasizes the necessity of providing like sample and specimens for comparison with the question item. Under this principles the evidence found in scene of crime is compared with that’s previously done thing, and from this comparison that document is produced before the court as evidence. In this comparison the hand writing and printed document can compare to convict the criminal.

5. Fact do not lie:

Fact itself remain at any circumstances. Physical evidences are directly connected with the scene of crime and which is itself proving the fact that presence of criminal in that crime. So physical evidences can not lie the fact, and there is no room for error in proving or disproving the fact. The unique mark left by the offender remains only on him/her , so to prove the fact physical evidences are the best evidence.

Procedure Relating to Collecting Evidences

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

Definition:

Evidences as something legally submitted to a competent court as means of determining the truth or otherwise of an alleged matter of fact under the investigation.

Objective of evidence collection:

Establish relation between ‘scene of crime’ and ‘victim and suspect (as per the doctrine of exchange: when any two objects come in contact with each other c/o Locard’s Principle that there is always an exchange of particles in between them. Exchange of particle in between them)
The court looks into existence and non- existence of facts through the submitted evidences.

Site of evidence collection:

There are three site of evidence collection as

1. Scene of crime:
After reaching the scene of crime , the investigation officer searches for evidence. They may use 4 methods of locating evidence are Spiral, Wheel, Zonal and Grid .Thus after locating the collection of evidences starts. First of all the fragile evidences must be collected because they are likely to be contaminated easily and may loose its evidentiary value. The evidences like fingerprints and body fluids must be given first priority.

2. Fingerprints:
Mostly it found in ‘point of entry ‘of the spot. If everything are visible they can collect through scaled photography but everything are not visible then they need to be developed and lifted through scaled photography. If finger print is found in small portable objects the whole object is send to the forensic lab separately.

3. Body fluids (Blood, salvia, semen, urine):
If body fluids are fresh they are collected by means of a dropper or a pipette and placed in clean glass bottles and generally avoid plastic containers. If they are dried it is scrapped out by clean blade and placed in a clean paper or cellophane bags separately. If body fluids are present in clothes, bed-sheets etc. In such cases the whole stained cloth or piece containing the stain must be cut and send to the lab.

4. Hair, Fiber and Glass fracture:
They are collected by means of forceps and placed in a clean paper. Every piece of evidences must be collected separately.

5. Weapons, Bullets, and Cartridges;
These are collected by cotton gloves or with the help of clean white handkerchief and placed in wooden boxes with support in between. They are packed separately for lab.

6. Foot-Prints and tire marks:
These are mainly found in out-door scene of crimes. The print or caste is developed by experts in the scene itself. Such prints developed are photographed by means of a scale and is taken to the lab.

Victim:
Sample of blood (15-20 ml), hair, cloth, finger print are to be collected. The whole body of the victim is also photographed as evidences to show any marked if any in the whole body of the victim.

Suspect and his/her surrounding:
Clothes, blood, hair, seem, handwriting, finger print etc. is collected from the suspect as the case demand.

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.

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.

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.

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.

Leading question for Examination of Witness

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

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

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

As for example:

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

When leading question must not be asked:

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

Objection to leading question:

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