Historical Development of Evidence Law in Nepal

Earlier , the principles relating to law of evidence were not clear both under English and Nepali as well as Hindu and Muslim legal system. In the early English Law , ordeals , compurgation or wager of law and trial  by battle were used as modes of proof. Under Hindu system  of jurisprudence , sometimes  divine  test were used. The modern law of evidence owes its origin from English Common Law. Certain parts of law of evidence may be traced back to the period  Middle Ages. However , the real beginning  for the main outstanding features of evidence was made in 16th and 17th centuries, when jury started deciding cases  on the evidence  of witness. For the first time , a book on evidence , was written by Chief Baron Gilbert, who died in 1726.The book was published in 1756 after his death.

Historical Development  of evidence law of Nepal

Nepal does not have long legal history. The country remained divided  into different principalities until 1825(Bs).Late Prithvi Narayan Shah , the  great , united  the country  in one  nation  and king Rana Bahadur Shah  brought  the country  in present shape.The country remained under the Rana regime  in between 1903 to 2007(Bs).The country was subject to autocratic  rule during this period with concentration  of power  in the hand of Rana Prime minister and the king being only  titular head of the country.

Rana regime  was overthrown  with popular movement  in 2007(Bs).Until then we  adopted inquisitor  system  of  prosecution .After 2007 (Bs) the got democratization  with  the growth  of the notion  of rule of law. Thereafter we adopted adversary  model of justice system.Many old provisions, traditions and practices  still lurk  over head even though  they do not  confirm with  modern  philosophy.

We have first codification  of law  in 1437(Bs) during the  reign  of King Jayasthiti Malla  under the title  “Manab Nyaya Sastra”before  the unification of the country. It was basically religious code rather than code of law.Prime minister Janga Bahadur Rana, during the regime of King Surendra Birbikram Shah  implemented a new code  name “Muluki Ain  “in 1910(Bs).Until 2007(Bs) the sources of law were command  of the sovereign , custom, religious text, equity , justice and good conscience .

Historically  the country  was ruled by Kirat  dynasty , Lichhavi dynasty, Malla Dynasty and shah dynasty in different  period  of time .Historically development of law  has to be researched and  evaluated in these perspectives.

1.Ancient notion of law and justice:

Hindu philosophy held Dharma as a composite  feature of  law, other philosophy with the implementation  of written  law in the  country.

2.Trial by Ordeal:

Where there was  no reliable evidence  trial  by ordeal  and deposition  thereafter used  to be another method of adjudication in absence  of evidence.

3.Representation in the litigation:

Until 2007(Bs) legal education  was very  limited. So litigants were not  represented by any lawyer. They however , could appoint  any person  of their  choice  to represent  their case. Within the court room  bench assistant (Taharir) could give  dissent  opinion  against  the  verdict  of the Judge.Thus , both  being   subject matter  of consideration  in appellate court .Thus unique  method  got  subside  with the growth  of the legal education  and with  the  concern  of legal  aid in litigation.

4.Sarjamin[spot investigation]:Inquisition by public  authority upon information of any crime is the usual  practice  that prevailed  since  the long  time. This practice was popularly known as”Sarjamin or Dor”.It’s job was to investigate the case by calling  persons residing at the vicinity of the scene of  crime .It played vital  role  throughout the history  in the  adjudication on the case .It was finally decided  by Supreme Court  in Bir Bahadur  Tamang v.Krishna Maya Tamang that sarjamin  is not substitute of  a witness.In sarjamin  the person  giving  a statement  do not take  oath before  their  deposition , nor can they be cross examined by the opponent .So they  can not be held liable for perjury , if the statement  proved false  later on.Recentaly investigator have adopted new  method of investigation the case  known  as “Bastusthiti Muchulka”.Under this provision they invite  local people at police station  to relate information  known to them  as to  the  incidence.Such documentation  is not per se evidence.These  documents  may be  relevant  in pre-trial  proceeding  to  adjudicate  whether  the accused  be released  on bail or not pending  the trial[Sec.18 of the Evidence Act 2031]

5.Witness, examination of witness:

Religious text like Manusmriti, Yagyabalk Smriti, Bhanu Smriti, Narad Smriti etc.have given elaborate description  of competency  of witness  and their method of examination.There is  no uniformity  in  their approach . But  we can  draw some  common ground  as an  essence  of their direction.These  texts emphasized  that witness  should a person of high moral values ,honest in nature, free  from greed  and external influence.Person like convict,dishonest,saint, person having law  moral  profile etc.are disregarded to be a competent witness.Witness were supposed  to give deposition before the sun  or  the fire  or the god  with intimatios with  his  soul  or inner  conscience.He used  to be  penalized  if his  statement  proved false.Women were excluded  to be a competent  witness  unless it  is case relating to women. The first code  of 1910(Bs)has incorporated  some provisions as to evidence  but it  does not  relate  elaborately  with examination  of witness.In grave  offences  court officer himself was supposed  to visit  to the resident of witness  to take  deposition  if  he is unable to come to the court  because of his  agedness, or in case  of woman  because  of her  high social status  and non exposure  before the public.This provision still  prevails in law though obsolete in practice. The law had made mandatory  provision  to appear  before the court compulsorily  to a witness who has seen  the incident  by own his eye.Witness living at distant places could be examined through  local authority  with directions  of questions  to be asked  with  the witness  in written form.This was  termed as “Banda Sawal” which is still  prevailing  in the existing  law.Witnesses were required to take oath  by holding  copper and Tulsi Plant  before the deposition.This provision  was discarded after 2020 (Bs) with reformulation  of New Muluki Ain , it has written  only  oath provision  on the face  of his conscience.This law  had further  made provision   that if  there were more  than one  witness, all  of them  must be examined  wherever   possible  on the same day.The opponent  had right  to cross-examine  him.At the end of examination  he  was asked  whether  he had to say  anything more  and get recorded  his response .If anything  was  to be taken  after  the process of examination  he could  be asked  on such  point  only  with  the permission  of the court .This process  is know as “Tatimba’The following persons were  listed  as incompetent witness.

a.Who is blind before  the time of incidence

b.Who is dumb

c.Who is convicted  up to 3 times  or more  for giving perjury.

After 2020(Bs) lawyers were made immune  from giving  evidence  on  matters  which  are related  to him  by his client .There were  no provisions of privileges other  than this. But  Evidence Act  2031, has made  a good progress  over the  old law  in the sense  that now  all types of persons  can be witness if he/she had  perceived  the incidence  or fact by his/her  own sense. It made further  provision  of privilege  of witness in more  extensive  way. The Act  has made   further  provision  that on  points  of technicalities  or on  any  other subjects of complexity the court  may pursue  opinion  of experts  in the course  of the  proceeding.

  1. Documentary evidence:

Documentary evidence is regarded  as vital evidence throughout the history.Kagaj  janch ko Mahal  has laid down certain format for certain  type of transactions. Documents  not complying  with these  provisions  do not create any liability. There are certain documents which are to be required registered  if the transactions to be valied.These are some safeguards  to hold the transaction  free from collusion  fraud   or other forms of  mis-representation. Any document which is  in one’s own  handwriting  may be given in evidence against such person even though  he has not fixed  this signature on it.The usual practice is that the document given  in evidence  is shown  to the other  party for his reaction on it. If he describes it as fraud  , the court pursues  other method  of proving it[3].The Evidence Act 2031  has made  elaborate provision  as  to the method  of proving  documentary evidence. It also specifics the conditions in which  secondary  evidence  can be adduced in the proceeding.

7.Admission and confession:

Admission and confession  played  dominating role  throughout  the history of Nepalese Justice system.Dirrect examinations of the accused   or the litigant  prevailed until 2007(Bs).Jawan  Bandi, Thado Bujhnu,Kayalnama, Sabiti were such  terms  which have relevance with  admission and confession of the litigant. Any accused against whom  there  is prima facei   evidence , he was supposed  to confess his guilt before the  police. If  he does not  do so  the police was entitled  to administer torture  against  him[Chori ko  No.1,Muluki Ain 1910 Bs].This practice still pervades among  the police even though The Evidence 2031  has prohibited it.The present court practice  is that  confession before  the police is taken  as  evidence only  if the court  finds  it free from torture, influence or pressure  of any kind  or it must be corroborated by some  other independent evidence.

8.Character  evidence:

Character evidence used to one of the evidences against the accused  in the past.Accused having  criminal record  used to suffer  in various ways in the process  of confession   from them.Evidence Act 2031 has dispensed  this  practice by making  clear  cut provision  that character can not be given as evidence unless the character  is itself  in issue. Though  the law  has made  such explicit provision  the older practice  of stating  the past conviction  of the accuse  in the  charge sheet still prevails. This contradictory with  the sprit  of evidence  Act  2031,and it awaiting reform on it.

9.New Introduction made by Evidence Act 2031:

The Evidence Act 2031 , has introduce  some new and progressive  provisions that  what existed  in the past. They may be listed as  follows

  1. Judicial Notice
  2. Presumption  of law and presumption of fact
  3. Hearsay and exception  to hearsay rule
  4. Expert opinion
  5. Burden of proof
  6. Estoppels
  7. Privileges of witness

The present Evidence Act 2031  is obviously a progressive  over the past   practice. But we can not say that it is  perfect one. It has  not yet  been fully  implemented  in practice  because  of our traditional style  of working  and inadequacy in training. The following points are worthy of consideration for future reform.

  1. Even accuse may be invited as a witness of his /her case and be subjected to cross-examination by the opponent unless and until he/she refuses  to do so.

b.The defense  of alibi has become  of general phenomenon  in our system , when  an accused  confesses his/her guilt before the police  and denies it before the court. A mechanism  is to be  evolved  to  discourage  such practice  which encourages manufacturing of evidence.

c.Confession has to be made reliable and useful evidence  by encouraging  guilty  party to plead guilty with an attraction of lesser amount  of punishment  on such plea.

  1. The method of adducing evidence at the beginning of the trail is to be reviewed .Instead of  disclosing  each  and  every evidence  at the  outset  the proceeding  whether  civil or criminal , the prosecution  or the plaintiff  must be allowed  to establish their case by prima facie evidence. The burden of proof goes on changing as per the progress of the case.

e.Conviction and sentencing proceeding has to be separated  from betterment .Evidence Act 2031, has relevance  only with  conviction  proceeding .Every  other thing such as  character  of the accused , his/her family  status ,his/her earning , his/her  possibility of reformation , his/her  is relevant  in sentencing. Sentencing considering all these  matter may be regard as reformative  approach of punishment.

[1] Sen.Priya Nath:General Principles of Hindu  Jurisprudence, p.371

[2] NKP 2019,P.240

[3] Section 78 of Court Management of Muluki Ain 2020

[4] Sec.5 of the Evidence Act 2031

[5] Sec.6 and 7 of the Evidence Act 2031]

[6] Sec.10,11,12 of the Evidence Act 2031]

[7] Sec.23 of the Evidence Act 2031

[8] Sec. 25 to 33 of the Evidence Act 2031

[9] Sec.34 of the Evidence Act 2031

[10] Sec.40 to 45 of the Evidence Act 2031]