TyroCity: Evidence Law Notes

Confession

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

A confession is a statement implicating him/her that the crime in question or alternatively he/she must have admitted all real relevant facts which are connected with the crime under consideration. In the case of HMG. VS. Jimidar Kurmi Supreme Court of Nepal has made an observation that If the accused has confessed his guilt before the police voluntarily without exhibiting any resistance it may be taken as evidence.

As per Sir James Stephen ‘a confession made at any time by a person charged with a crime stating or suggesting the inference that he/she committed the crime. Confession are special form of admissions. Thus it is popularly said that “All confession are Admission, but all Admission are not Confession.”

It is a rule of universal law that’ a person may convicted on the basis of his/her confession made in judicial proceeding. The underlying principle is enshrined in two Latin Maxims as stated below:

1. Confessio in Judicio Omini Probation Major Est:
It means confession is judicial proceeding is greater than any other proof.

2. Confessio Facta in Judicio Est Plena Probatio:
It means confession is absolute proof.

Indian Supreme Court has made remarkable decision in the case of “Palka Narayan Swami vs. Emperor “that a statement made by an accused which must either admits in terms of offence or any rate substantially all the facts which constitute the offence. It means that confession s the kind of admission which refers to the acceptance of all the facts that constitute the offence. The expression ‘confession ‘ means a statement made by an accused admitting his/her guilt .It is an admission or acknowledgement to commission of an offence.

Classification of Confession:

Confession can be divided in two categories:

Judicial confession
Extra judicial confession.

Judicial confession:
Confession made before the court is judicial confession .Guilty plea in plea bargaining is judicial confession. The court relies upon it unless there are reasonable doubts to it.

Extra Judicial confession:
Confession made by the accused before somebody outside the court. Such person may be the police, person in authority, friends, neighbors or others. As to police and person in authority the conditions on what ground confession is admissible has already been discussed above so far as the other persons are concerned confession can be taken as evidence if the court is of the opinion that it is voluntarily and free from the influence of torture. In Nepalese practice the prosecution has pay little attention on this point and are very rare instances in which such persons like friends or neighbors produced in the court to give evidence against the accused.

Generally, Nepalese court accepts, confession made before the police if it is of the opinion that it is made voluntarily .If the courts find proof of torture, against the accused it has always rejected the confession to be taken in evidence. But in India confession made before the police is inadmissible at all cost. Even confession made during police custody is inadmissible.

Legality of Confession:

Confession, whether it is judicial or extra-judicial, must be clear and unequivocal. No reliance can be placed on confessions, which are in general or vague terms. The judicial confession of an accused is good evidence and he/her can be convicted on the strength of it. Law does not require that a confession must be corroborated before it can be acted upon. It is the duty of the court to decide whether it believes a confession or not. The Evidence Act 2031, provides for confessions to be an important part of the evidence to convict the accused provided, however, that is obtained without use of torture or fear or undue influence. The Interim Constitution of Nepal 2007 guarantees protection to every individual against physical or mental torture during detention for investigation and such protection include the right against self-incrimination.

Confession is relevant only if it is made by the accused voluntarily without being influenced by inducement, threat or promise of any kind. According to sec. 9(2) of evidence Act 2031 confession is relevant if it is proved as follows:

He must have made it in his consciousness.
He must not have been influenced with inducement, threat or promise from person under authority.
He must not have nor made it under the pressure of torture to himself or somebody else.
He must have made it in his consciousness:
That voluntariness is the essence of confession and person in authority denotes those persons who have legal right to persecute the offender .Therefore , it includes police, victim of the crime, public officials who are vested with the right of investigation of the crime .In the case of Bir Bahadur vs. Padan Lal Supreme court of Nepal has observed that “If any accused confesses his guilty before the police as well as in the court, the claim that he was tortured to extract confession in the police cannot be entertained.”
He must not having influenced with inducement , threat or promise from person under authority: A confession to be admissible in evidence ; it must be free and voluntary. If it proceeds from remorse and a desire to make reparation for crime, it is admissible. A confession made by an accused in criminal proceeding is irrelevant ,if it is caused by any inducement, threat or promise.
He must not have nor made it under the pressure or torture of himself or somebody:

Record of the statement of Suspect:

Interrogation of the arrested person starts after the arrest takes place. As the State Case Act [2049] requires the interrogation be carried out in presence of the government attorney.

The statement of the detainee amounting to confession forms a good evidence for conviction in Nepal, provided that it has not been extracted by use of force, coercion, inducement or torture or inhuman treatment. But in fact the entire Nepalese criminal justice system is based on confession. In Nepal more than 80% criminal cases adjudicated from the court under the basis of confession.

The confession and the admission are not the same thing .Evidence Act 2031 of Nepal neither talk about definition or differentiation of both. But Indian Evidence Act 1872 has mentioned both term confession and admission and also clarified these two terms. As a source of evidence , admission and confession are different things and they have different evidential values. To accept certain fact relating to the crime can not be counted as confession. In the case of Miss Marshakali Kaski on behalf of Jefrelong vs.Tribhuwan Airport and others made land mark observation stating that ‘accepting certain fact of the case ‘ is not confession. Similarly in the case of State vs. Porter, U.S.Supreme Court held that establishment of crime depends upon other facts and conditions. Hence , in admission , the conviction of crime may or may not be include. Learned people have symbolized that statement is ‘Genus’ admission is ‘Species ‘and confession is sub-species.

However , the context is different in the British law.Britain, there is no differentiation between admission and confession. They only recognized the difference in words. The Section 9 of British Evidence Act,1967 has mentioned confession as the evidence. In this context ,Walker said that ‘the distinction between admission and confession largely one of terminology .The Evidence Act 2031, of Nepal is not clear regarding confession and admission .Neither it has mentioned the terms confession and admission nor does it clearly make any demarcation between them. Thought , the Act seems too follow British view , the judicial interpretation follows Indian view. It is because the Evidence Act , 2031 has treated both confession and admission as the single term, i.e. statement made by party to the litigation .So the legal aspect often creates confusion which ultimately obstruct delivering of justice.

[1] HMG vs. Jimidar Kurmi NKP2027 P.61).

[2] AIR ,1939, P.47

[3] The Indian Evidence Act 1872, Sec.25 and 26

[4] NKP 2021, P.182

[5] Analysis and Reform of the Criminal Justice System in Nepal-CeLLRd, 2057

[6] NKP 2034, P.138

[7] State vs.Porter, 32/135,Wigmore ,f.821

[8]Prakash Washti, Evidence Law,4th edition,2053(Kathmandu, Paribas Prakashan), p.122

Certificate, Report and special Kinds of Statistics

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

According to Section 19 of Evidence Act 2031,any persons or organizations authorized to provide credential or certificates , such documents shall be regarded as genuine and may be given evidence in court proceedings. So a typing certificate provided by a typing institute may be given in evidence without calling the proprietor as witness to prove that the person in question has such qualification.

Similarly as per the Section 20 of Evidence ACT 2031,any inquiry report prepared by anybody who is authorized to make such inquiry by law may be given in evidence in court proceeding. Such report must be duly presented and recorded in the office.

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.

Hostile witness and its Credibility

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

The word ‘hostile’ literally means unfriendly .A witness is generally expected to give evidence in favor of the party to whom he/she is called. But in certain cases such witness may unexpectedly turn hostile and gives evidence against the interest of the party, who has called him/her. Such witness is called ‘hostile witnesses. He /she is also known as ‘Adverse witness’ or ‘Unfavorable witness’. A hostile witness is one who form the manner in which he/she gives evidence shows that he/she is not desirous to telling the truth to the court.

Where the witness is adverse to the party called him/her, such party is not entitled as of right to cross –examine the witness. The matter is entirely in the discretion of the court whether to permit to the person calling the witness to put any questions to him/her , which might be put by the adverse party in cross-examination. Before putting such question, the party must take permission from the court. In the case of Sat. Paul vs. Delhi Administration the Supreme Court of India observed that witnesses were supposed to be independent, made contradictory statement and the prosecution with permission of the court can cross-examine them.

Credit of hostile witness:

Principally, the court relies upon the evidence given by the witness to arrive at the truth or falsity of the claim or charge in the litigation. Some times, the witness called by the party turns hostile and it is not safe to rely upon such evidence. Then the parties may be provided with an opportunity to give independent testimony by impeaching the credit of witness.

The credit of witness may be impeached in the following ways by the adverse party or with the consent of the court by the party who called him/her;

By the evidence of persons who testify that they ,from their knowledge of the witness , believe him/her to be unworthy of credit.
By proof that the witness has been bribed or has accepted the offer of a bribe or has received any other corrupt inducement to give his/her evidence.
By proof of former statements inconsistent with any part of his/her evidence which is liable to be contradicted.

Cross- examination is an art:

When thinking about cross-examination , it is important to keep in the mind that its primary purposes is destructive – to destroy the credibility of the witness by suggesting that the witness did not perceive correctly, does not remember accurately what he/she saw, is not communicating accurately , what he/she thinks , he/she remembers, he/she saw or is lying .Thus most of the cross –examination , when it is not eliciting new facts that the witness has not testified to on direct –examination in order to help build the cross-examiner’s case-in –chief or defense, attacks perception , memory, clarity or sincerity. Sincerity is the most complex of these testimonial capacities and is itself often broken down into bias, prejudice, interest and corruption.

Cross-examination is often spoken by trial lawyers as the ultimate trial art-the most difficult skill for a lawyer to master, requiring years of practice, an intuitive grasp of human psychology and understanding of the legal subject matter, the judge and jury’s subjective needs and biases, and all of the information contained in the World Almanac(just incase the witness testifies on direct that he/she saw the crime committed in the moon light in which there was no moon).Young lawyers, however, often find that asking the non object able question on direct examination is a bigger problem. But direct examination is mostly a matter of knowing what the foundational requirements are for the evidence you want to elicit, asking the question in proper order(starting with who is witness? what is her connection to the case?) to establish the necessary foundation and allowing the witness to tell the story. Allowing the witness to tell his/her story makes not only good sense from an advocacy perspective; it is what the rules require. Leading questions should not be used on direct examination or with friendly witness on cross-examination.

However cross-examination is the best test of truth or falsity. It helps to purify truth and fair justice. Cross-examination of the witness to collect other evidence. Cross-examination of the witness is the process of purifying the facts, collection of the facts for the witness of the opposite party. The proper exercise cross-examination is regarded as one of the most effective test which the law has devised for discovery of truth. It is a most effective of all means for extracting truth and exposing falsehood.

Statement given by Witness in other case

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

Any witness, who made any statement on previous occasion before any court and if such statement is relevant in subsequent trial, they may be given in evidence under the Section 17 of Evidence Act 2031.

As per the Section 33 of Evidence Act 1872 of India has made similar provision but it has made additional requirement that in order to be admissible of such statement such witness must be subjected to cross-examination on previous litigation.

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 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.

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.

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.

Types of Evidence

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

Evidence is any fact presented before the court to prove or disproves the fact in issue under consideration on the court. Evidence may be classified in to several categories.

1. Oral evidence:

Statement made by witness before a court to prove or disprove any fact is regarded as oral evidence. There is general rule that oral evidence must be direct that is the person giving the evidence must have perceived the fact by his/her own senses. It may be regarded as direct evidence. In order to ensure the reliability of the oral evidence and disregard the defects that may creep. Direct evidence is testimony of witness to the existence or non-existence of a fact or fact in issue.

Generally in the such types of evidence, the following four types of measures are adopted while taking testimony of witness.

The witness must take oath for giving any statement that he/she would speak the truth only and no more.
He/she is subjected to punishment under perjury if his/her statement proved untruthful.
He/she is subjected to cross-examination by the opponent party.
His/her bodily gesture and mode of speaking are observed by the court to ensure credibility of his/her statement.

2.Real Evidence:

Anything or substance or material used in the commissions of any crime or marks blood, soil condition found in the area of scene and identified by the witnesses in the court are regarded as real evidence, Eg:Weapons, Blood stained clothes etc. They are important if connection between them and the accused could be established in the trial.

Chain of custody of physical evidence is to be protected properly from the scene of crime to court room to avoid fraud distortion or manipulation of it. It has to travel through several frauds including laboratory and expert examination before it is finally presented in the court. Therefore, careful seal packing and documentation with each change of hands is strictly necessary to ensure its protection. This is known as chain of custody of physical evidence.

3. Direct Evidence:

All types of evidence, which has directed relevant with fact in issue, may be regarded as direct evidence. It is also known as “positive evidence”. Evidence given by direct witness/eye witness is called “Direct Evidence”. Direct evidence is the testimony of a witness to existence or non-existence of a fact or fact in issue. Eg. Mr.Thapa is tried to set fire to the house. Mr.Karki deposes that he saw Mr.Thapa setting fire. Mr.Karki is eye witness.

4. Documentary evidence:

Anything written or marked or inscribed on any substance or document , which conveys any idea meaningful to other who reads it is regarded as document. Document may be private or public in its nature. Document prepared by a public officer in exercise of his/her public duty is regarded as public document and all other documents are private one.

Documentary evidence may be categorized as primary evidence and secondary evidence. All types of original documents are regarded as primary evidence. Documentary evidence is proved according to rules of law of the law of evidence. Especially documentary evidence has greater relevance in civil proceedings while oral evidence plays dominant role in criminal proceedings.

Eg. An inscription on a metal plate or stone, map or plan, suicide note and sales deed etc. are known as documentary evidence.

5. Circumstantial evidence:

Circumstantial evidence is a testimony by witnesses as to the circumstances from which an inference is to drawn as to the fact in issue. It is not possible to get direct evidence in all types of cases .In such situations the court has to rely on circumstantial evidence. Circumstantial evidence is helpful to prove relevant fact connected with event. A series of such evidence may help the court to arrive at a decision .Intention or knowledge of the accused is always proved through circumstantial evidence. In the case of Kalua vs. State of U.P[1], Supreme Court of India has made a marvelous decision on the basis of circumstantial evidence. Kalua was charged with the murder of the deceased by shooting him with a pistol. The circumstantial evidence proved were :

few days before the killing of the deceased the accused had held out a threat against him,
a cartridge was found near the cot of the deceased a pistol was recovered from his house,
the fire -arm expert gave his opinion that the cartridge found near the cot of the dead body was fired from the pistol produced by the accused. It was held that there could be no room for thinking in the circumstances established in this case, that anyone else other than the accused might have shot the deceased. He was convicted.

6. Corroborative Evidence:

Corroborative evidence is that evidence which tend to support some other evidence . It is a weak type of evidence, which supports some other evidence to strengthen its evidential value. Materials discovered through such confession may corroborate confession by an accused. A witness may corroborate his /her statement by referring to his/her previous expression.

7. Hearsay Evidence:

It is indirect evidence. It may be oral or documentary if any fact, which is heard from somebody else, is deposited in the court, the deposition is regarded as hearsay. Hearsay evidence is inferior type of evidence. Generally it is disregarded at any court proceedings but there are several exceptions laid down by the law of evidence which allows hearsay evidence to betake in court decision.Eg. Dying declaration, Statement on the spot etc. The reason is that if hearsay evidence is totally disregarded may cases may go without evidence.

8. Original Evidence:

By original evidence is meant, the production of the thing proved in its original form .It is that , which a witness reports himself/herself to have seen or heard through the media of his/her own sense.

9. Primary Evidence:

It means, the documents itself is produced for the inspection of the court. In the case of transaction of money , if plaintiff produced the deed(Tamasuk) for the inspection of court is known as original evidence. Primary evidence is considered as the best evidence since it provides proof with certainty. That is why; law insists/requires first the primary evidence. The document may counter parts, and then each counter part is regarded as primary evidence. If the document is made by uniform process like printing or lithography, each one constitutes the primary evidence.

10. Secondary Evidence:

It is also known as inferior type of evidence. It indicates the existence of more original sources of information . Secondary evidence may be given in the absence of the primary evidence if proper explanation is given for such absence. Section 65 of the India evidence Act 1872 provides for the circumstances in which secondary evidence is admissible. Copies made and compared with the original or Photostat copies may be treated as secondary evidence.

11. Judicial Evidence:

It is evidence received by the courts of justice in proof or disproof of facts, the existence of which comes in question before them.

12. Non-judicial Evidence:

Evidence given in the court proceeding before police or officer not in a judicial capacity; but administrative is non- judicial evidence.

[1] AIR1958 SC 180

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

Definition of Expert Reports and Opinions

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

Generally an expert means a person who has special knowledge and skill in a special field either by the study or by the experience. Some experts are being expert through their study and some are being expert through their experience. In the western or developed country ,these people are recognized as an expert. Who did special courses like Doctor, Engineer and other specialized people. But in context of Nepal those people are recognized as an expert who have long time experience about such matter of handwriting, a person who observed someone handwriting from long time before. Section 23 of Evidence Act 2031, states “An expert as a person who has gained special knowledge through special studies , training and experience”.

According to Black’s Law Dictionary, “An expert is a person who through education or experience has developed skill or knowledge in a particular subject , so that she/he may opinions that will assist the fact finders.

Similarly, according to Ballentine’s Dictionary, “An expert means , one who is qualified either by actual experience or by careful study , as to enable him/her to form a definite opinion of his/her own respecting a division of science, branch of art or department of trade about which persons having no particular training or special study are incapable of forming accurate opinions or deducing correct conclusions.

Section 45 of Indian Evidence Act 1872 states that “when the court has to form an opinion upon a point of foreign law, or science, or art or as to identify of handwriting or finger print expression , the opinion upon that point of persons specially skilled in such foreign law, science or art , or in question as to identify of handwriting or fingerprint impression are relevant facts. Such person is called an expert.

In short, we can say an expert is that person who has knowledge on particular field by the study training or by the experience.