TyroCity: Evidence Law Notes

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.

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.

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.

When accused can take Plea of Alibi

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

If accused does not express about plea of alibi and directly express in front of the judge in the court ,in such situation court may not entertain. However, this kind of provision is not present in context of Nepal. So , it creates the high scope for accused to claiming plea of alibi and also manufacturing the false evidence to prove his/her defence. Therefore the plea of alibi evidence is observed by the court very often is highly suspicious and concocted. If alibi evidence established by inspected and unbiased testimony , it would be the best evidence to satisfy the court.

Statement on the spot

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

Statement made before or after the incident, that is called statement on the spot. Section 10 of Evidence Act 2031 states that “Anything said or done spontaneously in any incidence may be given in evidence”.

Such type evidence also known as statement made as a part of transaction.

As per the Section 6 of Indian Evidence Act 1872 has made similar provision. It is also known as res jestae. Such statement, in order to be admissible must be made spontaneously with the incidence. It should not be narrative in style and should avoid concoction of evidence.

Who can make such statement?

Any person who has observed the incidence or who has suffered the incidence, may make such expressions and person who observed or heard it may give evidence.

Rationality:

Any person who has spoken anything exhibiting his/her personal feeling through bodily gesture may be given in evidence by a person who has come across of him/her. The principle is that such expressions are less likely to be false.

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

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.

Burden of proving whether a person is alive

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

Section 32 of the evidence Act 2031 lays down that where a person is unknown for 12 years to his/her close relatives , the law presumes that such person is dead .The party claiming that such person is alive must bear burden of proof to that effect. As per the Section 108 of the Evidence Act 1872 of India states that “when a person is not heard of for seven years, he/she is presumed to be dead by law.But if anybody says that he/she is alive , the burden of proof lies on him/her .In the case of N.Jaylaxmi Ammal vs.R. Gopal Pattar, Indian Supreme Court observed that “one not heard for 7 years is presumed to be dead.’

Facts recorded in book of account

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

Any books of account, which is regularly kept may be taken as a evidence. As per the Section 14 of Evidence Act 2031”any books of account regularly kept or prepared by any office or authority may be taken as evidence’.

The principle is that such account is less likely fabricated and if any false entry is made that can easily be detected.

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.

Fact in Issue

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

Fact:

The term ‘fact ‘means an existing thing. the object of the sense. Right and liabilities in a judicial proceeding emerge out of facts.

Facts are categorized into

Physical Facts and
Psychological Facts.

Physical Facts:

It means and includes anything, state of thing or relation of things, capable of being perceived by sense. In other words, all facts, which are subject to perception by bodily sense, are called Physical Facts. They are also known as external facts.

Psychological Facts:

They are also known as ‘internal facts’. Those facts, which cannot be perceived by senses, are called Psychological Facts.

Fact in issue:

Generally fact in issue is those facts , which are under consideration of the court and in which the court has to give its adjudication .Fact in issue is those issues , which are claimed by one party and denied by other.

Moonir states about that “Any fact from which either by itself or in connection with other facts, the existence, non-existence mature or extent of any right, liability , or disability asserted or denied in any suit or proceeding necessarily”.

Similarly Wilkins and Cross have also observed about fact in issue .As per them fact is issue means “A set of fact from which some legal, liability, disabilty which is the subject matter of the enquiry, necessarily arises and upon which decision must be arrived at. Fact in issue are all those fact which the plaintiff in a civil action or the prosecutor in criminal proceeding must prove in order to succeed”.

Admissible Fact:

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

Corroborative Fact:

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

Proof:

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

Conclusive Proof:

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