Evidence Law

Development of the law of evidence in Nepal

1. Ancient and Hindu law period. Evidence was governed by the Dharmashastras (Manu, Yajnavalkya, Narada) and by custom. Proof was classed under three heads: lekha (documents), sakshi (witnesses) and bhukti (possession), with divya (ordeals) used when ordinary proof failed.
2. Muluki Ain, 1910 (1854). The first general code, with chapters on court procedure (Adalat ko Bandobast) and witnesses (e.g. rules on who can be a witness, oaths and documents). Evidence rules were mixed in with procedure, and confession had great weight.
3. Reforms of the 20th century. After 2007 B.S. and the establishment of the Pradhan Nyayalaya, courts gradually moved to reasoned decision on proof. The Muluki Ain was amended several times.
4. Evidence Act, 2031 (1974). The first codified and separate law of evidence, setting out relevancy, admissions, confessions, burden of proof, presumptions, witnesses, examination and documents. It has been amended since and is read with the Constitution and criminal procedure law.
5. Modern era. The Constitution of Nepal (2072) added rights of the accused (Art. 20: fair trial, right against self-incrimination, presumption of innocence), and the Criminal Procedure Code, 2074 and Muluki Criminal Code, 2074 added rules on investigation and evidence. Electronic Transactions Act, 2063 recognises electronic records.

Adversarial or inquisitorial?

Nepal's position. Nepal's system is a mixed system closer to the adversarial model at trial, but with strong inquisitorial features:

• Adversarial features: parties produce witnesses; cross-examination; burden of proof on the prosecutor; presumption of innocence; the Evidence Act is modelled on common law principles.
• Inquisitorial features: investigation is by police under the supervision of the government attorney and a written case file goes to the court; courts can summon witnesses and documents and question witnesses; much weight on written statements; no jury, and judges decide fact and law.

Conclusion. Nepal's law of evidence developed from Hindu and Muluki Ain tradition to the Evidence Act, 2031, and is best described as adversarial in trial form with inquisitorial elements in investigation and judicial control.

Meaning of "fact"

Under the Evidence Act, 2031 (as in common law), a fact means anything capable of being perceived by the senses, and also any mental condition of which a person is conscious. For example, that a man was at a place, that a person heard something, or that a person intended or knew something, are facts.

Kinds of facts

• Physical facts - things that can be seen, heard or felt.
• Psychological facts - intention, knowledge, good or bad faith, malice.
• Facts in issue - facts on which the existence of a right or liability, asserted or denied in the proceeding, depends.
• Relevant facts - facts that have some connection with a fact in issue and help to prove or disprove it.

Relevancy of facts connected with the fact in issue

Evidence may be given only of facts in issue and of facts declared relevant. A fact is relevant if it is connected with the fact in issue in one of the ways recognised by the Act, which include:

1. Facts forming part of the same transaction - things said or done at the time, such as the cries of the victim during an assault.
2. Occasion, cause or effect - facts that are the cause, effect or occasion of a fact in issue, such as motive, preparation, and conduct before or after the crime.
3. Opportunity and identity - facts that give the opportunity for an act, or identify a person or thing (e.g. a footprint, dress, place).
4. Time, place and relation of parties - facts showing the time and place of an event or the relations between the parties.
5. Conduct - the conduct of a party or an agent in relation to the proceeding, e.g. concealment or flight after a crime.
6. Inconsistent or probable facts - facts which make the existence of a fact in issue highly probable or improbable, such as an alibi.
7. Rebutting facts - facts that support or rebut an inference suggested by a fact in issue.

Limits. Relevancy is not the same as admissibility: a relevant fact may be excluded by a rule such as that against hearsay or privileged communication, and facts too remote to affect the inquiry are not relevant.

Conclusion. The law admits only evidence logically connected with the fact in issue, keeping trials focused and fair.

The statement

"The law does not seek proof of what is evident" expresses the principle that facts which are self-evident, notorious or accepted need not be proved by evidence. It saves time and cost and avoids pointless disputes, and it rests on the maxim manifesta non indigent probatione (what is evident needs no proof).

Legal basis in the Evidence Act, 2031

The Evidence Act lays down categories of facts that do not require proof:

1. Judicial notice - the court takes notice, without proof, of matters such as the laws in force in Nepal, the official gazette, the seals of courts, the course of nature, public history, geography, and the meaning of ordinary words. The court may consult books or references to refresh its memory.
2. Facts admitted - a fact that a party admits in the proceeding, or agrees in writing to admit, need not be proved, though the court may still require proof.
3. Presumptions - presumptions of law (such as legitimacy and regularity of official acts) and presumptions of fact allow a fact to be taken as proved until rebutted.
4. Facts not in dispute - facts not denied in the pleading or statement of defence are taken as undisputed.

Other basis: the general rule that proof is required only of facts in issue and relevant facts that are in dispute, together with the court's duty to decide on the basis of evidence on matters that remain disputed.

Limits

• The court's power of judicial notice must be exercised carefully, and it may be challenged.
• In criminal cases the court is cautious in treating an admission as sufficient and may still ask for proof.

Conclusion. The Evidence Act accepts that proof is unnecessary for facts judicially noticed, admitted or presumed, because they are evident, and thus the law concentrates evidence on the facts really in dispute.

The theory

Devendra Shamsher v. Lila Shamsher is cited in Nepali evidence law for the theory of admission: a statement by a party, in a pleading, in an earlier proceeding, in a document or orally, that suggests an inference about a fact in issue is relevant and may be used against the person who made it. A party cannot readily go back on what he or she has admitted. Its main points are:

1. An admission is evidence against its maker, and it relieves the other side of the need to prove the admitted fact.
2. It is not conclusive proof; the maker may explain or rebut it, for example by showing it was made by mistake or under pressure.
3. It binds the maker (and in suitable cases an agent or a person claiming through the maker), but it is not evidence in the maker's own favour.

Where and how the present law addresses it

The principle is contained in the Evidence Act, 2031, in its provisions on admissions and on facts that need not be proved:

• It defines an admission as a statement that suggests an inference about a fact in issue or relevant fact, made by the persons and in the circumstances the Act lists, such as a party, an agent or a person having an interest in the subject matter.
• It makes admissions relevant and provable against the maker, while stating that an admission is not conclusive.
• It provides that admitted facts need not be proved and that the court may nevertheless require proof.
• It separates admission from confession in criminal cases, which is governed by stricter safeguards (voluntariness, no inducement, and the Constitutional right against self-incrimination in Art. 20).

Conclusion. The judicial theory of admission has been absorbed into the Evidence Act, which defines admissions, makes them relevant against the maker and treats them as rebuttable.

(a) Shifting of burden

The burden of proof first rests on the party who asserts a fact (the plaintiff, or the prosecution in a criminal case). It shifts when that party produces enough evidence to raise a presumption or prima facie case, and the other side must then rebut it. Examples: once the prosecution proves the accused possessed stolen goods recently after the theft, the accused must explain; once a document is proved executed, the party denying it must prove forgery or fraud. In criminal law the legal burden on the prosecution to prove guilt beyond reasonable doubt does not shift, except where a statute places a burden on the accused (e.g. some special facts within his knowledge).

(b) Presumption of fact

A presumption of fact is an inference the court may (not must) draw from proved facts in the light of common experience, human conduct and the course of nature. Examples: presuming that a person found in possession of recently stolen property is the thief or receiver; that a person who has not been heard of for a long time by those expected to have heard is dead; that a regular official act was properly done. It differs from a presumption of law, which the court must make until rebutted (e.g. legitimacy of a child born in marriage). A presumption of fact is always rebuttable and affects only the burden of proof.

(d) Judicial notice

Judicial notice is the court's recognition of certain facts as true without requiring formal proof, because they are well known or can be verified from reliable sources. Examples are laws in force in Nepal, the gazette, official seals, the calendar, geography, the course of nature, public events and the meaning of common words. The court may refer to books and may require a party to supply references. Its rationale is judicial economy and certainty. The facts noticed should be undisputable, and the opposing party may be permitted to argue against notice.