TyroCity: Evidence Law Notes

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.

Physical evidences Definition and Application

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

The evidence ,which can be touched, seen , smell or any evidence which gives the relevancy with the fact of scene of crime is known as physical evidence. Physical evidences are directly link up the scene of crime. It consists in providing the presence of suspect at the scene of crime or in showing that an object which can be conclusively linked with him/her in some way was used in the commission of crime. Physical evidence is reliable evidence, which can prove the presence of offender in scene of crime, the notion behind this is “every contact leaves trace”. Physical evidences are left by the offender at a time of occurrence of crime, and take something from the body or scene of crime which was not before.

Generally we can found two types of evidence within the physical evidence having class character, and evidence having individual character. From the evidence having class character, the offender can not find exactly. Class character denotes the evidence found in scene of crime , which can be used by a large number of people .Such as, shoe marks, tire marks, and so on. But in individual character evidence , investigator can find out the offender exactly. Individual character evidence can not be found in repeated form and it poses the unique in nature, it can not be duplicated and can not be found another similar potential value, such as finger print, foot print and palm print. To fully appreciate the potential value of physical evidence , the investigator must understand difference between class character and individual character of physical evidence that are termed class character.

Evidence with high degree of probability , as original with a particular source. The ability to established individuality distinguishes this type of physical evidence from that possessing only class characteristics. Such as finger print, foot print and palm print.

Application of Physical Evidence:

Physical evidence has unique in nature and which can not duplicate by any one. It has individual nature and distinct from any other person. In Nepalese context, the uses of physical evidence to convict suspect is very poor. Nepalese criminal justice system is based on confession , so criminal justice system of Nepal has to develop to collect the best evidence. We get exceptional case of using the physical evidence to convict the suspect. If the physical evidences are use to convict the suspect the possibility of punishing the innocent will be reduced.

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.

Meaning and Purpose of Examination and Cross Examination

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

Examination means testified to the witness about relevancy to find out witness knowledge, confidence , so no for the subject matter. Interrogative of witness by the opposition party is called cross examination. Cross examination is also said to be ‘ the greatest engine even invented for the discovery of earth.

Cross examination is’ the questioning of a witness at a trial or hearing by the party opposed to the party who called the witness to testify.

Cross-examination ‘the most effective art of the skilled trial lawyer; the interrogative of a witness for the opposing party by questions formed to test the accuracy and truthfulness of his/her testimony on direct examination and to bring out the truth of matter in issue; an absolute rights in action and proceeding.

According to Taylor, cross-examination is ‘the motives to prevent truth are so much numerous in judicial investigation than in the ordinary affairs of life that the danger of injustice arising from this cause’

Cross-examination of the witness is the process of purity the fact from the witness of the opposite party. It does not protect the rights of the party, must have both the right and opportunity of cross-examination. Cross-examination is one of the greatest weapon of the testing the veracity of a statement made by a person. It is both, sword of attack and a side of defense.

Purpose:

Cross-examination is designed to serve one or more of the following purposes as

To damage or destroy the opponent,
To substantially discredit the witness,
To support one’s own the case

According to Cross and Wilkins, the objective of cross-examination on conducted or on behalf of the opposite party are

to elicit evidence directly relevant to the issued which is favorable to the cross-examiners case and
To discredit the witness.

The very purpose of the cross-examination is to ask the question regarding to what the witness has stated in the examination in –chief are in the case of that witness and particularly when the witness is a party to the proceeding of that party.The entire questions which are asked with a new challenge the evidence-in – chief are permissible .The motives to prevent truth are so much more numerous in judicial investigation than in the ordinary affairs of life and the danger of injustice arising from this cause.

Types of estoppels

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

We may categories estoppels as follows:

1. Estoppel by Record:

It refers to judgment or public records, which are believed to be true. A person who acts in pursuance of judgment or records cannot be estopped.

2. Estoppel by Deed:

It means stopped by an agreement .When a person enters into an agreement and his/her statement is furnished their in , he/she shall not be permitted to deny his/her statement.

3. Estoppel by Conduct (Estoppel in Pais):

When a person , by acts or words or deeds induces another person to believe the existence of the thing and make him/her to act upon it, he/she is stopped from denying the existence of such facts.

4. Promissory Estoppel:

The rule of “Promissory Estoppel” is recognized by the court of equity in England. It is also known as ‘Requisite Estoppel ‘ or ‘New Estoppel.’ It does not come within the meaning of sec.34 of Evidence Act 2031.It relates with future promise , where a person makes a promise to another thereby induces him/her to do an act to alter his/her position; the person promise is stopped from denying the truth of that promise. In the case of M.P.Sugar Mills vs. State of UP,Indian Supreme Court has Evolved the concept of promissory estoppels in the first time in India.

Estoppel is rule of civil actions. It has no application in criminal proceedings and also does not operate in the question of law, which is where there is law everybody should act as per the law. Ple of estoppel does not count in such situation but admission has close relevance with estoppel. Estoppel is not a piece of evidence rather it is a procedure to stop the other party making contradictions. It is one of the important procedures, which has vital effect in any court proceedings.

Burden of Proof : Definition

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

The expression burden of proof means “obligation to proof a fact.” Every party of the case has to establish facts which go in his/her favor or against his/her opponent. In other words, the general rule with regard to burden of proof is:” He/she who asserts must prove.” The reason is “one who drags another into the court must hear the burden of proving the facts which he/she asserts”.

The word ‘proof’ signifies a state of mental certainty as to existence or non-existence of some fact and the phrase’ burden of probabilities which has to be compulsive or overwhelming in the case of a choice in favor of a conviction as to remove all reasonable doubt. Burden of and presumption may become decisive only where evidence from both sides is equally balanced or there is paucity of evidence on either side.

Rebuttal of Presumption:

Section 29 of the Evidence Act 2031 states that there are certain facts, which are presumed by the court in favor of either party to the litigation. Presumption of law are those situations in which the law directs the court to presume certain facts on proof of some other facts. The court is obliged to presume as per the direction of law if such situation does not exist. Such situation are listed at the Section 6 of the Evidence Act 2031.The court acts as per the presumption until it is rebutted by the other party.

Similarly, presumption of facts are those situations in which the court acts on option whether to presume certain fact or not. If it does presume , the other party must bear burden of proof to rebut it. Section 7 of the Evidence Act 2031 has laid down such situations.

Presumption of Ownership:

Section 33 of the Evidence Act 2031 says that any person who is in possession of property is presumed to be owner of that property. The person rebutting it must bear burden of proof to the same effect. Similarly Section 110 of Evidence Act 1872 of India lays down that a person in possession of a property is presumed to be the owner . If anybody denies that the possessor is not owner, the burden of proof lies on him/her.

Burden of 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.

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.

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.

Evidence Law

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

Introduction

Classification of Evidence

Types of Evidence

Fact in issue and relevant facts

Fact which not need to be proved

Deposition and Testimony

Expert Reports and Opinions

Burden of Proof

Estoppel

Plea of Alibi

Procedure Relating to Collecting Evidences

Procedure Relating to Collecting Evidences

Custody of Physical evidences

Examination of Witness

Privileges of Witness

Privileges of Witness

Plea of Alibi : Definition and Principle

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

Alibi is the Latin term , which means ‘elsewhere’. Alibi is a piece of evidence that one was elsewhere and alleged act took place, an excuse.

As per Oxford Dictionary Alibi means that a claim or the evidence supporting it , that when an alleged an act took place one was elsewhere or an excuse of any kind , a pretext or justification.

According to Ballentines Dictionary Alibi means that a rebuttal of evidence of the prosecution by evidence that the accused was elsewhere that the alleged scene of the offence at the time of offence.

Section 28 of the Evidence Act 1031 lays down that ,if any law has laid down any such provision specifying that certain facts are to be proved by the certain party in the given situation, the same hold good if such situation does arise.

A defense that places the defendant at the relevant time of crime in different place than the scene involved and so removed there from as render it impossible for him/her to be guilty party.

These all definitions have lay down that Alibi means at the time of occurrence of crime he/she was not there. Plea of Alibi is the mode of defense taken by the accused that he/she was physically not present at a time of scene of offense by the reason of presence at another place. Alibi is different from all kinds of evidence; it is based on the premise that defendant is truly innocent. Thus Alibi is based on the theory that presence of else where is essentially is inconsistent of presence of accused at the place and the time of alleged occurrence and the participant in it.

Plea of Alibi is view as self defense or provocation. Basically legal burden lies on prosecution in criminal case and plaintiff in civil case. It does not means that defendant has no any burden of proof. The burden of proof lies on the party concerned as per the situation of the case .Usually the defendant does not legal burden in criminal case however they often have evidential burden. If defendant wishes to do more than merely deny the prosecution case and wishes to raise an affirmative defense that he/she will bear the evidential burden. Thus, in certain situation burden of proving a particular fact in issue may be laid by the law on the accused. Therefore, plea of Alibi is one of situation on which defendant has evidential burden to justify defense being consider seriously by the court. Once there is any evidence to support such ‘explanation’ than legal burden of disproving such explanation rest upon the prosecution.

Principle of Plea of Alibi:

Plea of Alibi is based on Roman principle ,”ei qui non negat incumbite probation”. It means who claims has to prove it not the party who negats.A person alleged too have done any act might introduce the fact that making it less possible that he/she was present at the time and place of the act and such facts are admissible even though they do not suffice to make his/her presence total impossible. Alibi if established is a complete defense to the charge of having committed the crime , the force of this defense is universally recognized. The principle of an alibi is that essential inconsistent with the presence at the place at the place and the time alleged, and therefore with personal participation in the fact. Thus the evidentiary fact is a new affirmative proposition consider as the factum probandum through it’s logical operator is negative one.

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.