Evidence Law

Development of the law of evidence

The law of evidence is the body of rules that decides which facts a court may receive and how they are proved. It developed in stages.

1. Ancient and religious systems. Early societies relied on oaths, ordeals (trial by fire or water), witnesses and divine tests. In ancient India, the Smritis (such as Manusmriti and Yajnavalkya) recognised witnesses, documents and possession as the three kinds of proof.
2. Medieval period. Evidence rules were bound up with religion and the ruler's will. In Nepal the Muluki Ain of 1910 BS (1854) set out rules on witnesses, documents and confessions in the course of procedure.
3. English common law. The jury system produced rules to keep unreliable matter from lay jurors: the hearsay rule, the best evidence rule, and rules on character and opinion.
4. Codification. The Indian Evidence Act, 1872 (Stephen) put the common law rules in one code. It became the model for much of South Asia.
5. Nepal. Modern Nepali law developed through the Muluki Ain 2020 and then the Evidence Act, 2031 (1974), which defines relevancy, admissions and confessions, burden of proof, witnesses and privileges. The Muluki Civil Procedure Code, 2074 and the Criminal Procedure Code, 2074 now govern the taking of evidence, and the National Penal Code, 2074 states the offences.

Is Nepal closer to the adversarial or the inquisitorial system?

Nepal is predominantly adversarial. The parties lead evidence and cross-examine, the prosecution must prove guilt beyond reasonable doubt, the accused is presumed innocent and has the right to a lawyer and to remain silent, and the judge decides on the evidence placed before the court.

It also has inquisitorial features. The police and public prosecutor investigate and the government attorney's office decides whether to file a case. The court can call witnesses or documents and ask questions to arrive at the truth. In some matters, such as family, juvenile and certain civil matters, the court takes a more active role, and the Constitution (Article 20) requires the State to assist the accused.

Conclusion

Nepal's law of evidence is closest to the adversarial system, modified by inquisitorial features that strengthen the court's search for truth.

Fact and the relevancy of facts connected with the fact in issue

Meaning of "fact"

A fact is anything that can be perceived by the senses, or any mental condition of which a person is conscious. The law of evidence recognises two kinds.

• Physical facts: things, their state and their relation, such as a knife lying on the floor, or the injury on a body.
• Psychological facts: mental conditions such as intention, knowledge, good faith, malice or fear.

Facts are also divided into the fact in issue (the fact on which the right, liability or guilt in the case depends and which the parties dispute) and relevant facts (facts that are connected with the fact in issue so that they make it probable or improbable).

Relevancy

A fact is relevant to another when it is so connected with it that, by the ordinary course of events, it proves or disproves, makes probable or improbable, the other fact. Under the Evidence Act, 2031, evidence may be given only of the fact in issue and of facts declared relevant by the Act.

Facts connected with the fact in issue

1. Facts forming part of the same transaction. Facts so connected with the fact in issue that together they form one transaction are relevant, even if they happened at different times and places (for example, shouts and a chase during a murder).
2. Cause, occasion and effect. Facts that are the occasion, cause or effect of the fact in issue or of a relevant fact.
3. Motive, preparation and conduct. The motive for an act, preparation made for it, and the conduct of a party or of anyone whose conduct is in issue before or after the act.
4. Facts that explain or introduce. Facts needed to explain or introduce a relevant fact or that support an inference suggested by it, such as the identity of persons or things, or the time and place.
5. Facts showing a common intention or plan. Acts of conspirators and others acting in concert with the same intention.
6. Facts that make a fact probable or improbable. Facts that are inconsistent with the fact in issue (such as an alibi), or that make it highly probable.
7. Right or custom. Facts relevant to show the existence of a right or custom.
8. State of mind or body. Facts showing the existence of intention, knowledge, good faith, negligence or bodily feeling, when these are in issue.
9. Course of business. Facts showing that an act was done in the ordinary course of business.
10. Facts affecting admissibility. Facts needed to decide whether a confession or other evidence is admissible, for example that a confession was made voluntarily.
11. Character. Facts showing a person's character, but only in the limited cases where the law allows.

Test of relevancy

The test is logical connection: does the fact make the fact in issue more or less probable? If it does, the fact is relevant. A court will still exclude it if the law forbids proof of it.

Relevancy and admissibility

Conclusion

Relevancy is the foundation of the law of evidence. Only facts logically connected with the fact in issue, in the ways the Evidence Act, 2031 describes, may be proved, so that the court's time is not wasted and a decision rests on proper material.

"The law does not seek proof of what is evident": legal basis

The statement expresses the maxim manifesta non indigent probatione (what is manifest needs no proof). The aim of proof is to convince the court about a fact that is in doubt. Where a fact is already plain, proof is unnecessary and wastes time and money.

Legal bases in the Evidence Act, 2031 and related law

1. Judicial notice. The court takes notice of certain facts without asking for proof: the laws in force in Nepal, the Constitution, the territory and flag of Nepal, the course of nature, the calendar, the signatures and seals of courts and public officers, and well-known historical and geographical facts. A party need not prove that Kathmandu is the capital or that the sun rises in the east.
2. Admitted facts. A fact that a party admits in the proceeding or agrees to in writing need not be proved against that party by evidence. The court may still require proof in some cases, but the admission usually ends the need.
3. Presumptions. Where the law says the court shall presume a fact, such as the genuineness of a certified document, the fact is taken as proved until the contrary is shown.
4. Relevancy. Only facts in issue and relevant facts are to be proved. A fact that is not disputed is not a fact in issue, so evidence on it is unnecessary.
5. Matters outside the evidence. Facts that every reasonable person knows from ordinary experience are accepted without proof.

Rationale

• Saves the time and cost of the court and the parties.
• Prevents absurdity, such as demanding proof of the obvious.
• Avoids delay in proceedings.
• Respects common sense and the shared knowledge of the community.

Limits

The rule applies only where the fact is truly notorious or admitted. If a fact is doubtful or requires technical knowledge, it must be proved. The court may also require a party to show the source when it takes notice of a fact it does not know.

Conclusion

The maxim finds legal expression in the Evidence Act's provisions on judicial notice, admitted facts and presumptions: proof is for disputed facts, not for facts that are already evident to the court.

Devendra Shamsher v. Lila Shamsher: theory and its treatment in current law

Devendra Shamsher Rana v. Lila Shamsher Rana is cited in Nepali law as an authority on the finality of a judgment between the same parties. The theory it supports is the doctrine of res judicata (a matter finally decided by a competent court cannot be opened again between the same parties), together with its evidential side: a fact that has been judicially determined need not be proved again between those parties.

The theory

1. A judgment given by a court of competent jurisdiction in a case between the same parties (or those claiming through them) on the same matter is final and binds them.
2. The same dispute cannot be started again, and the facts found in it are treated as established between those parties.
3. The grounds are the finality of litigation, the avoidance of multiple suits, and the principle that no one should be harassed twice for the same cause.
4. A judgment is not protected if it was given without jurisdiction or obtained by fraud or collusion.

How the current law addresses it

• The Muluki Civil Procedure Code, 2074 provides that a suit on a matter already decided by a competent court between the same parties cannot be filed again, and gives the court power to dismiss it.
• The Muluki Civil Code, 2074 and the Criminal Procedure Code, 2074 reflect the same finality in the rules on binding judgments and on double jeopardy (a person is not tried twice for the same offence, which is also protected by Article 20 of the Constitution of Nepal, 2072).
• The Evidence Act, 2031 treats a fact already determined by a competent court as proved between the parties, so the court does not require fresh evidence.
• The exceptions in each Code keep the rule from protecting a judgment that is a nullity or was obtained by fraud.

Conclusion

The case supports the doctrine of finality of judgments, which modern Nepali procedural and evidence law state in statutory form.

Short notes (any three; all five are given briefly)

a. Shifting of burden

The burden of proof lies first on the person who asserts a fact, and he must lead evidence to establish it. Once he has produced enough evidence to make out a prima facie case, the burden shifts to the opponent to rebut it. Under the Evidence Act, 2031 the burden may also be shifted by a statutory presumption or by a rule that puts a fact especially within the knowledge of one person on that person. In a criminal case the burden to prove guilt beyond reasonable doubt stays on the prosecution, with the accused bearing it only for particular matters raised in defence.

b. Presumption of fact

A presumption of fact is an inference that the court may draw from facts proved, in the light of common experience and the ordinary course of nature, human conduct and business. It is rebuttable and the court has discretion whether to draw it. Examples are the presumption that a person in recent possession of stolen goods is the thief, or that a person not heard of for seven years is dead. It differs from a presumption of law, which the court must draw unless it is rebutted.

c. Expert opinion

As a general rule opinion is not evidence, but an exception is made for the opinion of experts: persons with special skill or knowledge in science, medicine, handwriting, fingerprints, ballistics or foreign law. The court admits their opinion on matters beyond ordinary knowledge. The expert must give reasons, may be cross-examined, and the opinion is not binding; the court weighs it with other evidence.

d. Judicial notice

Judicial notice is the court's acceptance of the truth of a fact without proof, because it is so well known or so authoritatively settled that proof would be a waste of time. The Evidence Act, 2031 lists facts of which notice is taken, such as laws in force in Nepal, the Constitution, the seals of courts, and generally known facts of history, science and geography. The court may consult books and documents to help itself. Once noticed, the fact is treated as proved.

e. Hearsay evidence

Hearsay is a statement made by a person who is not a witness in the case and is repeated by another to prove that what was said is true ("X told me that Y did it"). The general rule is that it is not admissible, because the speaker is not on oath, cannot be cross-examined and the court cannot judge his demeanour. There are exceptions, such as dying declarations, statements made in the ordinary course of business or duty, admissions and confessions, and statements of persons who cannot be produced as witnesses.

Meaning, nature and kinds of evidence

Meaning

The word "evidence" comes from the Latin evidere, to make plain. In law, evidence means whatever is placed before a court (witness statements, documents, material objects, and facts admitted) to prove or disprove a fact in issue. Under the Evidence Act, 2031 evidence includes the statements of witnesses, documents and other things the court accepts for this purpose. Evidence is different from proof: evidence is the means, and proof is the result when the court is convinced.

Nature

1. A means of finding the truth. It helps the court decide disputed facts.
2. Governed by law. The Evidence Act, 2031 and the procedure Codes decide what is relevant and admissible and how it must be given.
3. Based on relevancy. Only facts in issue and relevant facts may be proved.
4. Weighed by the court. The court decides its probative value, credibility and sufficiency.
5. Common to civil and criminal cases, though the standard of proof differs: preponderance of probability in civil cases, and beyond reasonable doubt in criminal cases.

Kinds of evidence

A. By form

1. Oral evidence: statements of witnesses made in court. It must be direct, from a person who saw, heard or perceived the fact.
2. Documentary evidence: documents produced for the inspection of the court, including electronic records.
3. Real (material) evidence: objects produced in court, such as a weapon, or the site visited by the court.

B. By source and relation to the fact

4. Direct evidence: evidence of the fact itself, such as an eyewitness.
5. Circumstantial evidence: facts from which the fact in issue may be inferred. It must form a complete chain that points only to guilt.
6. Primary evidence: the original document itself.
7. Secondary evidence: copies and oral accounts of a document, allowed only when the original cannot be produced.
8. Hearsay evidence: a statement not made by the witness, generally not admissible.

C. By nature of the witness

9. Testimonial evidence given on oath or affirmation.
10. Expert evidence: opinion of persons with special skill, such as doctors or handwriting experts.

D. By admissibility and value

11. Admissible and inadmissible evidence: relevant evidence that the law permits, and evidence the law excludes, for example privileged communications.
12. Conclusive evidence: evidence the court must accept and which cannot be contradicted.
13. Presumptive evidence: evidence that raises a presumption, which can be rebutted.
14. Corroborative evidence: evidence that supports other evidence.
15. Best evidence: the best proof the nature of the case permits.

Conclusion

Evidence is the base of every judicial decision. Its meaning, nature and kinds decide what may be put before the court and how it is weighed, serving the twin aims of discovering the truth and ensuring a fair trial.

Admission, and whether admission and confession are the same

Meaning of admission

An admission is a statement, oral, written or by conduct, made by a party to a proceeding (or a person whom the law treats as his representative), which suggests an inference about a fact in issue or a relevant fact and which is against the interest of the person making it. It is usually received as evidence against the maker. For example, in a debt suit the defendant says in a letter, "I owe him Rs 50,000".

Features

• It is not conclusive proof; the maker may explain or withdraw it, or the court may find it untrue.
• It binds only the maker and persons claiming through him.
• It is relevant evidence in both civil and criminal cases.

Are admission and confession the same?

No. A confession is a species of admission, so every confession is an admission, but not every admission is a confession.

Example

"I borrowed Rs 50,000 from him" is an admission. "I killed him" said by an accused is a confession.

Conclusion

Both are statements against the interest of the maker and fall under the Evidence Act, 2031, but a confession is a narrower and graver class of admission, made by an accused regarding the offence, and for that reason it carries more safeguards.

Evidentiary value of hearsay evidence and dying declaration

1. Hearsay evidence

Hearsay evidence is a statement made by a person who is not called as a witness, repeated by another witness in court to prove that what was said is true. The rule is that a witness must speak of what he himself saw, heard or perceived, so hearsay is generally inadmissible and carries no weight.

Reasons for exclusion

• The original speaker was not on oath and cannot be cross-examined.
• The court cannot watch his demeanour.
• The statement may be distorted when passed on, and it may be fabricated.
• It would multiply disputes and delay.

Exceptions

Hearsay is allowed in some cases where necessity and reliability exist: dying declarations; admissions and confessions; statements made in the ordinary course of business or in the performance of duty; entries in public records; statements about pedigree, custom or public rights; and statements of persons who are dead or cannot be found, in cases the Evidence Act, 2031 specifies. Even where it is admitted, the court weighs it carefully and does not convict on it alone.

2. Dying declaration

A dying declaration is a statement made by a person about the cause of his death or the circumstances of the transaction that resulted in his death. It is admitted under the Evidence Act, 2031 as an exception to the hearsay rule.

Grounds

1. Necessity: the victim is often the only witness, and is now dead.
2. Belief: a person facing death is believed not to lie (nemo moriturus praesumitur mentiri).

Conditions for reliance

• It must concern the cause or circumstances of death.
• The maker must have died (whether or not he expected to die when he spoke).
• It must be voluntary, not a result of tutoring, pressure or inducement.
• The maker must have been in a fit state of mind, and the statement should be clear and consistent.
• It is best recorded before a judicial officer or doctor in the maker's own words.

Evidentiary value

A reliable dying declaration may be the sole basis of conviction without corroboration. If it is doubtful, inconsistent or made under suspicion, the court looks for corroboration. If there are several declarations that conflict, the court examines which is more reliable.

Comparison

Conclusion

Hearsay is weak and excluded because it cannot be tested, while a dying declaration is accepted from necessity and the trust placed in a dying person, though the court must be satisfied that it is truthful and voluntary.

Beldev Upadhyaya v. Gita Bhattarai, NKP 538 (2049): fact in issue and ratio decidendi

Fact in issue

The fact in issue is the fact on which the right or liability claimed depends and which the parties dispute. In this case, reported in the Nepal Kanoon Patrika for the year 2049 BS, the dispute between Beldev Upadhyaya and Gita Bhattarai and others turned on whether the claimant had proved, by evidence the court could accept, the fact on which his claim depended, and on which party the burden of proving it lay.

Ratio decidendi

The principles on which the decision rests are the settled rules of evidence applied by the court:

1. The burden of proving a fact lies on the person who asserts it, and a claim cannot succeed on mere assertion.
2. The court decides on the evidence on the record, and gives reasons for the weight it assigns to documents and witnesses.
3. A decision that is not supported by evidence on the record, or that ignores relevant evidence, cannot stand.

Conclusion

The case is cited for the rule that findings must rest on proved facts, with the burden on the party who asserts the fact in issue.

Short notes (any three; all five are given briefly)

a. Primary evidence

Primary evidence is the best evidence of a document: the original document itself, produced for the inspection of the court. Where a document is made in several parts in one process, each part is primary evidence of its contents. The general rule is that a document must be proved by primary evidence, and a copy or oral account (secondary evidence) is accepted only when the law allows, for example when the original is lost, destroyed, in the possession of the opponent who refuses to produce it, or in a public office.

b. Character

Character means the sum of a person's qualities as known in the community, covering reputation and disposition. Under the Evidence Act, 2031 character evidence is generally not relevant, because a person's good or bad name does not prove that he did or did not do a particular act. Exceptions are that the accused may show good character, which then lets the prosecution reply with bad character, and that character is relevant when it is itself in issue, as in defamation or in fixing damages.

c. A minor witness

A minor may give evidence if the court finds that he can understand questions and give rational answers. The court examines the child first (a voir dire) to test understanding of the duty to speak the truth. The evidence is received with care because a child is easily tutored and suggestible, so the court often looks for corroboration, though conviction on a reliable child's testimony alone is not barred. Children who are victims or witnesses may be questioned with special protections, such as in-camera hearings.

d. Privileges

A privilege is the right to refuse to disclose certain matters in court, or to prevent others from disclosing them. Main kinds are: the right of the accused not to be compelled to incriminate himself; professional privilege protecting communications between a lawyer and client; spousal privilege for communications during marriage; and State privilege for official secrets harmful to the public interest. A privilege belongs to the person entitled to it and may be waived by him.

e. Dying declaration

A dying declaration is a statement by a person about the cause of his death or the circumstances of the transaction that led to it, and it is admissible under the Evidence Act, 2031 as an exception to the hearsay rule. It rests on necessity (the victim is the only witness and is dead) and the belief that a person near death will not lie. The statement must be voluntary and made while the maker was fit in mind. If it is found trustworthy it may be the sole basis of conviction, and if doubtful the court seeks corroboration.