TyroCity: Evidence Law Notes

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.

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.

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.

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

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.

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.

Privileges of Witness

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

Definition:

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

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

National Security,
b.Proper function of public service and

c.Information for the detection of crime.

Classification:

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

1. Family privilege:

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

2. Matrimonial privilege:

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

3. Judicial privilege:

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

4. State Privilege:

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

5. Professional Privilege:

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

6. Privilege against self-incrimination:

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

Burden of proving such fact which is condition precedent to some other fact

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

Section 31 of the Evidence Act 2031 lays down that ,there are certain facts which are admissible on proof of some other facts. Such as dying declaration is admissible as evidence only one proof that the person making it , is dead. Certain facts are admissible as evidence. Under the Section 12 of the evidence Act 2031 , only if the person making it is dead or can not be found etc. secondary evidence is admissible , if it is public document or the original lost or destroyed. In all these cases the party trying to prove the secondary fact must also prove the first fact as condition precedent.

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.

General rule relating to examination of witness

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

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

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

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.

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.