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.

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.

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.

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.

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.

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 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.

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.’

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.

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 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.

Special procedure relating to examination of witness

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

Witnesses are examined in three stages. They are

Examination – in- chief,
Cross- examination and
Re- examination.

Examination-in–chief
At this stage the lawyer are entitled to put such questions which are relevant to the fact in issue. They can not put leading question. Questions, which suggest answers, are regarded as leading questions, whose usual answer would be in yes or no form. However leading question may be asked in the following two situations as

Where the subject matter is beyond controversy and
where the subject matters has already been proved in the court.

Witnesses vary in nature. Some may be talkative; others shy; lawyers must use their skill to bring out facts from the witness, which are relevant and important to their case. The must control talkative witness, while encourage to speak shy – witness.

Cross- examination:
Cross- examination starts after the completion of examination in chief and opponent lawyer has right to cross –examination. At this stage he/she is as liberty to put leading question to the witness. His/her questions may have been designed to test the veracity, credibility and accuracy of the statement deposited by the witness. Exposing his/her bad character may impeach the witness. It is one of the grounds to discredit the witness. Witness may be discredited by showing relationship between him/her and the litigant, by showing his/her interest in between him/her and litigant in the subject matter of case. He/she may be contradicted by presenting statement made by him/her or some other occasion. Cross-examination is double edged weapon which should be wailed with great caution. It is one of the most crucial part of the examination of the witness which may affect the out come of the case. According to Philip Wendel, it is double-edged weapon, if you know to wield, it helps to cut enemy’s neck. Otherwise, it cuts one’s own hand. When a witness is cross-examined, he/she may be asked any question which tends:

to testify his/her veracity (correctness)
to discover, who he/she is and what is his/her position and
to shakes his/her moral character

Re-examination:
After the completion of cross-examination the first presenting party has right to reexamination but he/she can not ask questions on new subject matter. He/she must be limited to the impact of cross-examination. He/she should try to make thinks correct which has been distorted in cross-examination. He/she can not ask leading question in re-examination except in the following situations;

If not objected by the adverse party or
With the permission of the court or
Already sufficiently proved matter (undisputed)

The other adverse party may further re-cross examine the witness.