TyroCity: Evidence Law Notes

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.

Privileges of Witness

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

Definition:

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

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

National Security,
b.Proper function of public service and

c.Information for the detection of crime.

Classification:

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

1. Family privilege:

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

2. Matrimonial privilege:

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

3. Judicial privilege:

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

4. State Privilege:

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

5. Professional Privilege:

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

6. Privilege against self-incrimination:

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

Formal Admission

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

Facts that need not to proved:

Facts which come within the definition of judicial notice.
Facts admitted by the opponent in the course of court proceeding.[Section 4 of Evidence Act 2031] and
Facts which come within the definition of presumption of law and presumption of fact .[Section 6 and 7 of Evidence Act ,2031]

According to Section 56 of Indian Evidence Act 1872, facts of which court will take judicial notice need not to proved by the parties to any court proceedings.

The expression ‘judicial notice ‘ means notice or recognition of the truth of the fact .

Formal Admission

Judicial notice

Presumption

Formal Admission:

The expression “Admission “means voluntarily acknowledgment of the existence or truth of a particular fact. It deals with admission by statements only oral or written or contained in an electronic form. Admission plays a very important role in judicial proceedings. If one party to the suit or any other proceeding proves that the other party has admitted his/her case, the work of court becomes easier. An admission must be clear, precise, not vague or ambiguous. The evidence Act ,2031 of Nepal has not mentioned the terms ‘admission’ and ‘confession’. Generally we can found two different views regarding admission: the first one is British view and the second one is Indian view. The sec. 9 of British Civil Evidence Act 1968, defines admission as” statements against interest by a party”. In British system admission is applied only in civil matter/case. Section 17 of Indian Evidence Act 1972, defines admission that covers both the scope of civil and criminal matters/cases. It defines admission as’ a statement , oral documentary which suggests any inference as to any fact in issue or relevant fact. This definition is much broader and wider. It means admission is the statement that refers to the acceptance of the certain facts which is related to fact in issue or relevant fact. In the case of Md.Baksh vs.Crown , the Indian Court held that there may be the admission in criminal cases. Admission is applied as evidence against the part making it. The principle is that no one generally speaks against his/her interest unless the subject matter is true.

Person competent to make admission:

Parties to the litigation.
His/her agent acting under his/her order.
His /her legal representative.
Person having joint interest in the subject matter of the suit is derived from.
Person whose liability is in question.
Person to whom suit expressly refers to.

Admissions are applied as evidence against the party making it. The principle is that no one generally speaks against his/her own interest unless the subject matter is true.

However there are three exceptional situations where admission is relevant in one’s own favor and these situations are as follows;

Statement accompanied by body or bodily feelings including statement made on the spot spontaneous with the incident.
Statement made by persons who cannot be found.
Statement relevant as evidence other than admission
Statement made with a view to come to a compromise can never be given as an evidence because dispute whenever possible must be tried to be solved by amicable means.
Admission can never be a conclusive proof but it may operate as its estoppels. An admission made by the party to the litigation is always relied upon by the court and separate evidence need not be given to prove such facts.

In the case of Bhuwane vs.Hijmajesty’s Government of Nepal, Supreme Court has made decision that “admission alone is not sufficient to hold a person liable for murdered

Characteristics of admission:

To constitute admission , the following characteristics are to be present;

It may be oral or documentary.
It is a statement to suggest any inference as to any fact in issue or relevant fact.
It may be made by any person prescribed under the law.
It must be made under the circumstances prescribed under the law.

Nature of Admission: The statement made by parties during judicial proceeding are self regarding statement .The self regarding statements are may be classified under two heads are

Self-serving statements: are those , which serve, promote or advance the interest of the person making it. Hence, they are not allowed to be proved. They enable to create evidence for themselves.
Self-harming statements: are those , which harm or prejudice or injure the interest of the person making it. These self-harming statements are technically known as ‘Admissions’ and are allowed to be proved.

Importance of Admission:

An admission is the best evidence against the party making the same unless it is untrue and made under the circumstances ,which does not make it binding on him/her. Admission by a party is substantive evidence of the fact admitted by him/her. Admissions duly proved are admissible evidence irrespective of whether the party making the admission appeared in the witness box or not. In fact, admission is the best substantive evidence that an opposite party can rely upon it. The evidentiary value of admission by the Government is merely relevant and not conclusive , unless the party to whom they are made has acted upon and thus altered his/her detriment.

Documents prepared at the time of investigation

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

Documents prepared by the authorities during the time of investigation of any crime are relevant. As per the Section 18 of Evidence Act 2031, documents prepared in the course of investigation are relevant only if the witness making such statement come to the court to testify himself/herself. However, in the following two situation the court may take recognize of such statement without coming the witness as its preliminary hearing whether to grant bail on the accused or not.

It is Postmortem Report and the opinion of the expert has conformity with other circumstance evidence. The same holds good if the opponent party does not challenge the opinion of the doctors.
If it is Syracuse Report , the witness need not to come to testify at preliminary hearing in the court.

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.

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.

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.

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.

Significance of Physical evidence

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

1. Identification:
The physical evidence merely used to identify the offender from the physical techniques. Identification has its purpose to determination of the physical or chemical identity of a substance with as near absolute certainty as existing analytical techniques will perform.

2. Comparison:
Another significance of physical evidence is comparison the collected evidence with the same characters object or the things. Analysis is subject to a suspect specimen, and control specimen to the same tests and examinations for the ultimate purpose of determining whether or not they have a common origin.

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.

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.

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.