Evidence Law Book Full IMP

Keshab Bhattarai /LL.
B 3rd Year/ Evidence law/ Handout by Prakash Sir/2068
Evidence Law
Chapter one Chapter Ten

1. Introduction 10. Plea of Alibi
Chapter Eleven
. 11. Procedure Relating to Collecting Evidence
Meaning Chapter Twelve
Basic principle of law of evidence 12. Custody of Physical evidences
Nature and scope
Chapter thirteen
13. Examination of witness
Chapter Two
2. Historical development of Law of evidence in Chapter fourteen
14. Privileges of witness
Chapter Three
3. Classification of Evidence
A.Original and hearsay
B.Dirrect and circumstantial
C.Primary and secondary
D.Oral, Documentary and real evidence
E.Exhibits and their real value
Chapter Four
Fact in issue and relevant fact
Chapter Five
Fact which not to be proved
5.1. Formal Admission
5.2. Judicial Notice
5.3. Presumption
Chapter Six
6. Deposition and Testimony
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Keshab Bhattarai /LL.B 3rd Year/ Evidence law/ Handout by Prakash Sir/2068
6.1. Admission
6.2. Statement on the spot
6.3. Dying declaration
6.4. Special statement by person on particular Occasions
6.5. Facts recoded in public documents
6.6. Facts recorded in book of account
6.7. Facts public in Books and Articles
6.8. Statement given by Witness in other case
6.9. Documents prepared in the time of investigation
6.10. Certificate, Report and special Kinds of Statics
Chapter Seven
7. Expert Reports and Opinions
Chapter Eight
8. Burden of Proof
Chapter Nine
9. Estoppels
Chapter One
a. Meaning
The word ‘evidence “is derived from the Latin word evider, which means to show clearly; to make clear to the
sight ; to discover clearly; to make plainly certain; to ascertain ;to prove. So evidence is about proving or disproving
facts in issue, the means by which such facts come to prove or disproved.1
Evidence, the means by which disputed facts are proved to be true or untrue in any trial before a court of law or an
agency that functions like a court.
1
Y.V. Chandrachud and VR Manohar, the Law of evidence ,[New Delhi: Wadhwa and Company Nagpur,21st Edition 20050p.1]
2
Black’s Law Dictionary has defined the evidence as something (including testimony, documents and tangible
objects) that tends to prove or disprove the existence of an alleged fact. E.g. the bloody glove is the key piece of
evidence for the prosecution. Evidence is the demonstration of a fact , it signifies that which demonstrates makes
clear or ascertains the truth of the very fact or opint in issue.2
Moonir states that “The term evidence in its legal and general acceptation includes all means by which alleged fact
is proved or disproved to the satisfaction of the court”.
Phipson states that –Evidence means the testimony whether oral, documentary ,real which may be legally
received in order to proved or disproved some fact in issue”.
As per the Indian Evidence Act, 1892 Evidence means;

1.All statements which the court permits or requires to be made before it by witness in relation to matter of fact
under enquiry such statements are called oral evidence.
2. All documents produced for the inspection of the court, such documents are called documentary evidence.
Black stone says that which demonstrates, makes clear or ascertain the truth of facts or points in issue either or
one side or other .
Evidence Act of Nepal 2031 does not define about the meaning or definition of evidence.
In conclusion evidence means to prove or disprove, fact in issue is evidence and in another word it called relevant
fact.
b. General principle of the law of evidence:
The evolution of evidence law is based on certain basic principles .These are knowing as “five principles” as
1. Best evidence must be produced in all cases: Where there is possibility of availability of best evidence the court
insist on its production. The court would not consider other inferior evidence .Direct evidence is regarded as best
evidence.
2. Hearsay is no evidence: Generally hearsay evidence is discarded in the trial, where there is possibility of
availability of direct evidence .So it is the negative expression of the first principle state above. There are several
exceptions to this rule.
2
Bryan A. Garner,black’s Law Dictionary,7th Edition[West Group:1999.p.576]
3
3.He who sets the law in motion must establish his case himself: The rule concerns with burden of proof .The
Prosecution in criminal proceeding and the Plaintiff in civil proceeding must establish his case by evidence
before hearing the other party.
4. In criminal proceeding guilt must be proved beyond the reasonable doubt .Where there is doubt benefit of doubt
goes to the accused.
5. In civil proceeding the case may be adjudicated on balance of probability: The party wins the case that is able to
adduce more evidence compare to his opponent.
c. Nature and scope:
Evidence law is generally used in court. Its scope is very much high and broad. Generally it comes to use in two
sectors as Judicial and Quasi Judicial.
Judicial Sector:
a. Criminal Case and
b. Civil Case
a. In civil case: Law of evidence is playing vital role. If Plaintiff comes to court and ask for Justice then he/she
shall give evidence. If can not able to produce evidence, then he/she lost his/her case. In other hand if Plaintiff
produced evidence against the defendant then defendant shall also produce his/her evidence against plaintiff.
b. In criminal case:
Law of evidence can play most important role in criminal case as well as in civil case. If anyone frames charge shit
against anyone, the framer shall produce evidence .If someone takes plea of innocent then he/she shall produce
evidence of innocent.
Quasi Judicial Sector:

Administrator has jurisdiction to see certain case. In Interim Constitution of Nepal 2007(2063) Article …. Called
them Judicial Institutions. They have to follow due process of law; it means evidence law is necessary them too.
Chapter Two
2.1. History of Law evidence:
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
4
used as modes of proof. Under Hindu system of jurisprudence, sometimes divine test were used 3.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 16 th
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.
2.2. 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 Prithavi Narayan Shah , the great , united the country in one nation and king Rana Bahdur Shah
brought the country in present shape. The country remained under the Rana regime in between 1903 to 2007
(Bs) .The countries 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) they 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:
3
Sen.Priya Nath:General Principles of Hindu Jurisprudence, p.371
5
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 surrounding area 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
Tamang4 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. Recently investigator has 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 be a person
of high moral values, honest in nature, free from greed and external influence. Person like convict, dishonest, saint,
person having low 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 intimations 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 eyewitness 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
4
NKP 2019,P.240
6
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.
6. 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 5.The Evidence Act 2031
has made elaborate provision as to the method of proving documentary evidence. It also specifies 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. Direct
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
which there is prima facie 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.
5
Section 78 of Court Management of Muluki Ain 2020
7
8. Character evidence:
Character evidence is used in one of the evidences against the accused in the past. Accused who have 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. These contradict with the spirit of evidence Act 2031, and it
awaiting reform on it.
9. New Introduction made by Evidence Act 2031:
The Evidence Act 2031 has introduced some new and progressive provisions that what existed in the past. They
may be listed as follows
a. Judicial Notice6
b. Presumption of law and presumption of fact7
c. Hearsay and exception to hearsay rule8
d. Expert opinion9
e. Burden of proof10
f. Estoppels11
g. Privileges of witness12
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.
a. 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 guilt with an
attraction of lesser amount of punishment on such plea.
d. The method of adducing evidence at the beginning of the trail is to be reviewed .Instead of disclosing each
and every evidence at the out set the proceeding whether civil or criminal , the prosecution or the plaintiff must
6
Sec.5 of the Evidence Act 2031
7
Sec.6 and 7 of the Evidence Act 2031]
8
Sec.10,11,12 of the Evidence Act 2031]
9
10
Sec. 25 to 33 of the Evidence Act 2031
11
12
Sec.40 to 45 of the Evidence Act 2031]
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be allowed to establish their case by prima facei 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 /she is relevant in sentencing. Sentencing
considering all these matter may be regard as reformative approach of punishment.
Chapter Three
Classification of evidence:
Evidence is any fact presented before the court to proof or disproves the fact in issue under consideration on the
court .Evidence may be classified in to several categories.
1. Oral evidence:
Statement made by witness before a court to prove or disprove any fact is regarded an oral evidence. There is
general rule that oral evidence must be direct that is the person giving the evidence must have perceived the
fact by his/her own senses. It may be regarded as direct evidence. In order to ensure the reliability of the oral
evidence and disregard the defects that may creep. Direct evidence is testimony of witness to the existence or non-
existence of a fact or fact in issue.
Generally in the types of evidence, the following four types of measures are adopted while taking testimony of
witness.
a. The witness must take oath for giving any statement that he/she would speak the truth only and no more.
b. He/she is subjected to punishment under perjury if his/her statement proved untruthful.
c. He/she is subjected to cross-examination by the opponent party.
d. His/her bodily gesture and mode of speaking are observed by the court to ensure credibility of his/her statement.
2. Real Evidence:
Any thing or substance or material used in the commissions of any crime or marks blood , soil condition found
in the area of scene and identified by the witnesses in the court are regarded as real evidence ,Eg:Weapons, Blood
stained cloths etc.They are important if connection between them and the accused could be established in the
trial.
Chain of custody of physical evidence is to be protected properly from the scene of crime to court room to avoid
fraud distortion or manipulation of it. It has to travel through several frauds including laboratory and expert
examination before it is finally presented in the court. Therefore careful seal packing and documentation with
each change of hands is strictly necessary to ensure its protection .This is known as chain of custody of
physical evidence.
3. Direct Evidence: All types of evidence, which has directed relevant with fact in issue , may be regarded as direct
evidence. It is also know as “positive evidence”.Eidence given by direct witness/eye witness is called “Direct
9
Evidence”. Direct evidence is the testimony of a witness to existence or non-existence of a fact or fact in
issue.Eg.Mr.Thapa is tried to setting fire to the house .Mr.Karki deposes that he saw Mr.Thapa setting fire.
Mr.Karki is eye witness.
4. Documentary evidence:
Any thing written or marked or inscribed on any substance or document, which conveys any idea meaningful to
other who reads it is regarded as document. Document may be private or public in its nature. Document prepared by
a public officer in exercise of his/her public duty is regarded as public document and all other documents are
private one. Documentary evidence may be categorized as primary evidence and secondary evidence. All types of
original documents are regarded as primary evidence. Documentary evidence is proved according to rules of law of
the law of evidence. Especially documentary evidence has greater relevance in civil proceedings while oral
evidence plays dominant role in criminal proceedings.
E.g. An inscription on metal plate or stone, map or plan, suicide note and sales deed etc.are known as documentary
evidence.
5. Circumstantial evidence:
Circumstantial evidence is a testimony by witnesses as to the circumstances from which an inference is to drawn as
to the fact in issue. It is not possible to get direct evidence in all types of cases .In such situations the court has to
rely on circumstantial evidence. Circumstantial evidence is helpful to prove relevant fact connected with event. A
series of such evidence may help the court to arrive at a decision .Intention or knowledge of the accused is always
proved through circumstantial evidence. In the case of Kalua vs. State of U.P 13, Supreme Court of India has made a
marvelous decision on the basis of circumstantial evidence. Kalua was charged with the murder of the deceased by
shooting him with a pistol. The circumstantial evidence proved were :a)few days before the killing of the deceased
the accused had held out a threat against him ,b)a cartridge was found near the cot of the deceased)a pistol was
recovered from his house,d)the fire -arm expert gave his opinion that the cartridge found near the cot of the dead
body was fired from the pistol produced by the accused .It was held that there could be no room for thinking in
the circumstances established in this case , that anyone else other than the accused might have shot the
deceased .He was convicted.
6. Corroborative Evidence:
Corroborative evidence is that evidence which tend to support some other evidence .It is a weak type of evidence,
which supports some other evidence to strengthen its evidential value. Materials discovered through such
confession may corroborate confession by an accused .A witness may corroborate his /her statement by referring to
his/her previous expression.
7. Hearsay Evidence:
It is indirect evidence .It may be oral or documentary if any fact , which is heard from somebody else , is
deposited in the court , the deposition is regarded as hearsay .Hearsay evidence is inferior type of
13
AIR1958 SC 180
10
evidence .Generally it is disregarded at any court proceedings but there are several exceptions laid down by the
law of evidence which allows hearsay evidence to betaken in court decision.Eg.Dying declaration, Statement on
the spot etc.The reason is that if hearsay evidence is totally disregarded may cases may go without evidence.
8. Original Evidence:
By original evidence is meant , the production of the thing proved in its original form .It is that , which a witness
reports himself/herself to have seen or heard through the media of his/her own sense.
9. Primary Evidence:
It means, the documents itself is produced for the inspection of the court. In the case of transaction of money, if
plaintiff produced the deed (Tamasuk) for the inspection of court is known as original evidence. Primary evidence
is considered as the best evidence since it provides proof with certainty. That is why; law insists/requires first the
primary evidence. The document may counter parts, and then each counter part is regarded as primary evidence. If
the document is made by uniform process like printing or lithography, each one constitutes the primary evidence.
10. Secondary Evidence:
It is also known as inferior type of evidence. It indicates the existence of more original sources of
information .Secondary evidence may be given in the absence of the primary evidence if proper explanation is
given for such absence. Section 65 of the India evidence Act 1872 provides for the circumstances in which
secondary evidence is admissible. Copies made and compared with the original or Photostat copies may be treated
as secondary evidence.
11. Judicial Evidence:
It is evidence received by the courts of justice in proof or disproof of facts, the existence of which comes in
question before them.
12. Non-judicial Evidence:
Evidence given in the court proceeding before police or officer not in a judicial capacity; but administrative is non-
judicial evidence.
Chapter Four
Fact, Fact in issue and relevant facts:
4.1. 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 categorizes into
(a) Physical Facts and
(b) Psychological Facts.
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a) 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.
b) Psychological Facts:
They are also known as ‘internal facts’. Those facts, which cannot be perceived by senses, are called Psychological
Facts.
4.2. 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 ,disliabilty 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”.
4.3. Relevant Fact:
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 are
relevant fact. This does not give any more description as to relevant fact.
Indian Evidence Act 1872 has given elaboborate 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. 14 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.
14
The Evidence Act of India 1872, Sec.6]
12
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 facts 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 15.
4.4. 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 admissible16.
4.5. Corroborative Fact:
Facts, which are given in support of some other facts, are called corroborative facts.
4.6. 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.
4.7. 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.
Chapter Five
5. Fact which not need to be proved:
5.1) Formal Admission
5.2) Judicial notice
5.3) Presumption
15
Indian Evidence Act 1872,Sec.8]
16
Sec.9 of the Evidence Act 2031]
13
5.1.) Formal Admission:

The expression “Admission “means voluntarily acknowledgement 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 about 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. Section 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. 17Admission 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:

a. Parties to the litigation.
b. His/her agent acting under his/her order.
c. His /her legal representative.
d. Person having joint interest in the subject matter of the suit is derived from.
e. Person whose liability is in question.
F .Person to who 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;
a. Statement accompanied by body or bodily feelings including statement made on the spot
spontaneous with the incident.
b. Statement made by persons who cannot be found.
c. Statement relevant as evidence other than admission
d. 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.
17
Rnajit Bhakta Pradhanag,Ageneral Introduction of the Nepalese Law of Evidence ,5th edition (Bhotahiti,Kathmandu,Ratna
Pustak Bhandaar 2050),p.125
14
e. 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 .His majesty’s Government of Nepal, Supreme Court has made decision that “admission
alone is not sufficient to hold a person liable for murdered18
Characteristics of admission:
To constitute admission, the following characteristics are to be present;
a. It may be oral or documentary.
b. It is a statement to suggest any inference as to any fact in issue or relevant fact.
c. It may be made by any person prescribed under the law.
d. It must be made under the circumstances prescribed under the law.
Nature of Admission:
The statement made by parties during judicial proceeding is self regarding statement .The self regarding statements
are may be classified under two heads are:
a. 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.
b. 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.
Chapter Six
6. Judicial Notice:
Certain facts are supposed to be already within the knowledge of court. So such facts need not be proved. They are
supposed to be within the notice of the court. Facts which are quite famous or infamous may be subject matter of
judicial notice. Similarly facts which are beyond controversy are judicially noticeable such as a week has 7 days,
Saturday is the official holiday of Nepal, Falgun 7 is the democracy day .These facts can not be a bone of
18
Bhuwane vs.HMG,NKP
15
contention. So they need not be proved. The court per se (by itself) acts upon them. As according to Section 5 of the
Evidence Act 2031 of Nepal deals with judicial notice. The section gains some examples in which the court is
supposed to take judicial notice. They may be stated as follows;
a. The National Anthem
b. Signature(sign manual) of the Head of State
c. The geographical condition of the country
d. The constitution of Nepal and the laws of the Nepal
e. Notice Published in Nepal Gazette
f. Other facts which are beyond controversy the court are regarded as expert of the law of Nepal and
the constitution.
The facts stated above are one famous and beyond controversy. Notice published in Nepal Gazette is the
notification of Nepal Government to public at large. So such facts are taken by the court without pursuing the
process of admitting evidence. However, when the court is not certain in any fact, the court may order to the
parties to the litigation to produce such materials which assist it to take judicial notice. Such materials are not
evidence; they are materials which assist the court to refresh its memory.
6.1. Improper Admission and rejections of evidence:
If any court admits any improper evidence or rejects proper evidence in any court proceeding the decision does
not fail or stand for the very reason unless it is proved that the rejection or admission of any evidence has
crucial effect at the adjudication .[Section 54 of the Evidence Act 2031 of Nepal]
6.2. Facts that need not to prove:
a. Facts which come within the definition of judicial notice.
b. Facts admitted by the opponent in the course of court proceeding. [Section 4 of Evidence Act 2031] and
c. 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
prove by the parties to any court proceedings.
The expression ‘judicial notice ‘means notice or recognition of the truth of the fact.
6.3. Character Evidence:
According to Sec.24 of Evidence Act 2031, character evidence is irrelevant except character itself is in issue.
Character includes both reputation and disposition. It relates with a person’s past life and evaluation of it by other
members of society .Past conviction is an evidence of bad character. Character is excluded from taking into
evidence on the ground that it may prejudice the judge to act against the accused. A Dacoit one time may be a
Dacoit of every time .Therefore past dacoity is irrelevant to prove present Dacoity offence. Of course, past
conviction is relevant while fixing the punishment to increase amount of punishment. Conviction and sentencing
are separate proceeding at the administration of criminal justice .The rule of evidence concerns with conviction or
16
acquittal of the accused. In sentencing proceeding everything may be relevant including character of the accused.
There is no exception to this rule. Where character itself in issue, then character may be relevant and admissible. In
litigation like defamation, adultery and divorce proceeding character may be a subject matter of issue. In such
situation good or bad character may be given in evidence.
Sec.52 to 55 of the Indian Evidence Act 1872, laid down the provisions relating to ‘Relevancy of Character’. The
character of the parties to a proceeding may be relevant under Sections 52 to 55.The evidence of character may
be tendered against or in favour of any person in his/her capacity as a witness or as a party to a proceeding. The
word has been defined in Sec.55 of the Evidence Act. It includes both reputation and disposition , but except as
provided in Sec.54, evidence may be given only in general reputation and general disposition , and not of
particular acts by which reputation or disposition were shown. According to Sec.52 in Civil proceeding character
is irrelevant.
Chapter Seven
7. Presumption:
Presumption is an inference, which takes place in the absence of absolute certainty as to truth or falsehood of a fact.
In other words, presumption is an inference drawn by the court as to the truth of a particular fact, from other known
or proved fact. The presumption has direct relevance with burden of proof. It shifts burden of proof on the other
party to prove otherwise against the party in whose favor the presumption exit.
7.1 Classification of Presumption:
Presumptions may be classified as follows:
a. Presumption of Law(Shall Presumption):
Sometimes the law defines certain situations to be presumed in a certain way. The law makes such presumption to
make our civil life easy and practical. As according to Section 6 of Evidence Act 2031 deals with presumption of
law. Its refutable presumption that means the aggrieved party must prove otherwise against the presumption if
he/she is to win the case. As per the Sec.6 of Evidence Act.2031has categorizes Presumption of law as
1. Presumption of undivided property:
If more than one co-partner is living together, the law presumes that the property is in possession of one of the co-
partner is divisible property among other partners equally.
2. Presumption of joint ownership:
If two or more person is in joint possession of any property, the law presumes that each and every person has equal
claim over the property.
3. Presumption of genuinely as to public documents: The law presumes that each and every public document
prepared in course of public duty and kept is public record is genuine and accurate a it purports to be. The
aggrieved party must prove otherwise to rebut this presumption. Until it is so done the court acts upon it.
4. Presumption of legitimacy:
17
Any child begotten during lawful wedlock is presumed to be legitimate child of the same couple. Likewise child
begotten within 272 days of death of the deceased husband is presumed to be legitimate child of the deceased
husband and similarly child begotten within 272 days of divorce is presumed to be legitimate child of divorce.
5. Presumption of genuinity of published and certified document:
Document which purports to publication of government, or if any document is certified by any public official
without his/her authority. The law presumes that such publication or certification is genuine as it purports to be on
the face of it.
6. Presumption of genuinity of law or judicial decisions published by foreign government:
If any document which purports to be law or judicial decision is published by foreign government, the law
presumes such document to be genuine and accurate. It is taken as evidence on the same presumption. The
aggrieved party must bear burden of proof if he/she wants the court to be believe the other way.
b. Presumption of Fact (May Presumption):

Sometime the law gives option on the court. In such situations the court exercises its prudence and practicality and
infers certain facts in favor or disfavor of either party to the litigation. In such situation the aggrieved party must
adduce evidence to bring the court in his/her favor. Section 7 of Evidence Act 2031, deals with presumption of
fact .The law has specified three situations as follows;
1. Presumption of theft:
If a person is found in possession of stolen property the court may presume that he/she either a thief or a person
dealing with stolen property .The court may not presume such fact it is proved that the accused may come
across of such property because of his/her nature of business.
2. Presumption of adverse interest:
Any person who is in possession of any document if does not produce before the court when ordered .Court may
presume that the document if produced relates to adverse interest of such party .The court presumes this way only
when it is prudent to do so.
3. Presumption based on logic and experience:
The court may presume any think which is pertinent to the given situation on the strength of its prudence and
experience. Everything cannot be brought and proved before the court. There may be several such situations in
which the court presumes certain thing at the proof of some other things.
(A). Mixed Presumption:
Besides presumptions of fact and of law a third category of presumptions is also recognized which is referred to as
mixed presumptions of law and fact. They lie on the boundary line between the other two, i.e. and presumptions of
fact and presumptions of law. They consist chiefly of certain inferences which from their strength, importance or
18
frequent occurrence and constant recommendations by judges become, in course of time, as familiar to the courts as
presumptions of law.
Presumption of law directs the court to presume certain fact mandatory on the given situation. So the court shall
presume such fact if the specified situation is before the court .Presumption of fact defers from presumption of law
in the sense that presumption of fact is at option of the court itself. The court is not obliged to presume any fact
mandatorily under it. It may presume certain fact if it thinks it appropriate in the given situation. Thus it depends
upon the perceptions of the court, its prudence and experience. Both of these perceptions are refutable in court
proceeding .The aggrieved party must give evidence, if it wants the court think otherwise. Conclusive proof is
another type of presumption which is irrefutable.
The law presumes that a child under 10 cannot form guilty mind, the proof of under agedness of 10 years is
sufficient to make believe the court that the child is innocent., the aggrieved party can not give evidence that
even if the child below 10, he/she did the act maliciously, with ill will or under cruel intention. So in conclusive
remark proof is known as fiction of law. It is irrefutable presumption of law. The two types of presumption of law
stated in the text of burden of proof are as follows:
1.Presumption of death :Any person who is not known to his/her close relations for more than 12 years of period
is presumed to be dead for the purpose of law19.
4. Presumption of ownership:
Any person who is in possession property is presumed to the owner of that property until otherwise proved. Indian
Evidence Act 1872 has given wide range of description relating to presumption of the public document and also
presumption of fact in sec.79 to 90, which does not differ with the provision mentioned in the Evidence Act
2031.Sec. 90 has stated that any document which is 30 years old and is produced from proper custody .The court
regards such document as genuine and the writing and attestation there in is genuine as per the law.
The law presumption relates to burden of proof. Presumptions whether of law or fact are always refutable by the
party on the strength of evidence, otherwise it may be the basis of decision.
Chapter Seven
7. Deposition and Testimony
7.1. Admission of confession
Confession:
A confession is a statement implicating him/her that the crime in question or alternatively he/she must have
admitted all real relevant facts which are connected with the crime under consideration. In the case HMG. VS.
19
Sec.32 of Evidence Act 2031]
19
Jimidar Kurmi Supreme Court of Nepal has made an observation that If the accused has confessed his guilt before
the police voluntarily without exhibiting any resistance it may be taken as evidence 20 .
As per Sir James Stephen ‘a confession made at any time by a person charged with a crime stating or suggesting
the inference that he/she committed the crime. Confessions are special form of admissions. Thus it is popularly
said that “All confession are Admission, but all Admission are not Confession.”
It is a rule of universal law that' a person may convicted on the basis of his/her confession made in judicial
proceeding. The underlying principle is enshrined in two Latin Maxims as stated below:
a. Confessio in Judicio Omini Probation Major Est:

It means confession is judicial proceeding is greater than any other proof.
b. Confessio Facta in Judicio Est Plena Probatio:

It means confession is absolute proof.
Indian Supreme Court has made remarkable decision in the case of “Palka Narayan Swami vs. Emperor “that a
statement made by an accused which must either admits in terms of offence or any rate substantially all the
facts which constitute the offence.21It means that confession s the kind of admission which refers to the acceptance
of all the facts that constitute the offence. The expression ‘confession ‘ means a statement made by an accused
admitting his/her guilt .It is an admission or acknowledgement to commission of an offence.
7.2. Classification of Confession:

Confession can be divided in two categories
a. Judicial confession
b. Extra judicial confession.
 Judicial confession:-Confession made before the court is judicial confession .Guilty plea in plea
bargaining is judicial confession. The court relies upon it unless there are reasonable doubts to it.
 Extra Judicial confession:-Confession made by the accused before somebody outside the court.
Such person may be the police, person in authority, friends, neighbors or others. As to police and person in
authority the conditions on what ground confession is admissible has already been discussed above so far as the
other persons are concerned confession can be taken as evidence if the court is of the opinion that it is
voluntarily and free from the influence of torture. In Nepalese practice the prosecution has pay little attention
on this point and are very rare instances in which such persons like friends or neighbors produced in the court
to give evidence against the accused.
20
HMG vs. Jimidar Kurmi NKP2027 P.61).
21
AIR ,1939,P.47
20
Generally, Nepalese court accepts, confession made before the police if it is of the opinion that it is made
voluntarily .If the courts find proof of torture, against the accused it has always rejected the confession to be taken
in evidence. But in India confession made before the police is inadmissible at all cost. Even confession made during
police custody is inadmissible.22
7.3 Legality of Confession:

Confession, whether it is judicial or extra-judicial, must be clear and unequivocal. No reliance can be placed on
confessions, which are in general or vague terms. The judicial confession of an accused is good evidence and he/her
can be convicted on the strength of it. Law does not require that a confession must be corroborated before it can be
acted upon. It is the duty of the court to decide whether it believes a confession or not. The Evidence Act 2031
provides for confessions to be an important part of the evidence to convict the accused provided, however, that is
obtained without use of torture or fear or undue influence. The Interim Constitution of Nepal 2007 guarantees
protection to every individual against physical or mental torture during detention for investigation and such
protection include the right against self-incrimination.
Confession is relevant only if it is made by the accused voluntarily without being influenced by inducement, threat
or promise of any kind. According to sec.9 (2) of evidence Act 2031 confession is relevant if it is proved as
follows:
a. He must have made it in his consciousness
b. He must not have been influenced with inducement, threat or promise from person under authority.
c. He must not have nor made it under the pressure of torture to himself or somebody else.
a. He must have made it in his consciousness:

That voluntariness is the essence of confession and person in authority denotes those persons who have legal right
to persecute the offender .Therefore , it includes police, victim of the crime , public officials who are vested with
the right of investigation of the crime .In the case of Bir Bahadur vs.Padan Lal Supreme court of Nepal has
observed that “If any accused confesses his guilty before the police as well as in the court, the claim that he was
tortured to extract confession in the police cannot be entertained.”23
b. He must not have influenced with inducement, threat or promise from person under authority:
A confession to be admissible in evidence; it must be free and voluntary. If it proceeds from remorse and a desire to
make reparation for crime, it is admissible. A confession made by an accused in criminal proceeding is irrelevant, if
it is caused by any inducement, threat or promise.
c. He must not have nor made it under the pressure or torture of himself or somebody:
22
The Indian Evidence Act 1872, Sec.25 and 26
23
NKP 2021, P.182
21
7.4. Record of the statement of Suspect:

Interrogation of the arrested person starts after the arrest takes place. As the State Case Act [2049] requires the
interrogation be carried out in presence of the government attorney.
The statement of the detainee amounting to confession forms a good evidence for conviction in Nepal, provided
that it has not been extracted by use of force, coercion, inducement or torture or inhuman treatment. But in fact the
entire Nepalese criminal justice system is based on confession. In Nepal more than 80% criminal cases adjudicated
from the court under the basis of confession24.
The confession and the admission are not the same thing .Evidence Act 2031 of Nepal neither talks about definition
or differentiation of both. But Indian Evidence Act 1872 has mentioned both term confession and admission and
also clarified these two terms. As a source of evidence, admission and confession are different things and they have
different evidential values. To accept certain fact relating to the crime can not be counted as confession. In the case
of Miss .Marshakali Kaski on behalf of Jefrelong vs. Tribhuwan Airport and others made land mark observation
stating that ‘accepting certain fact of the case ‘is not confession. 25Similarly in the case of State vs. Porter, U.S.
Supreme Court held that establishment of crime depends upon other facts and conditions. Hence, in admission, the
conviction of crime may or may not be include. 26Learned people have symbolized that statement is ‘Genus’
admission is ‘Species ‘and confession is Sub-species.
However, the context is different in the British law; there is no differentiation between admission and confession.
They only recognized the difference in words. The Section 9 of British Evidence Act, 1967 has mentioned
confession as the evidence. In this context ,Walker said that ‘the distinction between admission and confession
largely one of terminology27.The Evidence Act 2031, of Nepal is not clear regarding confession and
admission .Neither it has mentioned the terms confession and admission nor does it clearly make any
demarcation between them. Thought, the Act seems too follow British view, the judicial interpretation follows
Indian view. It is because the Evidence Act , 2031 has treated both confession and admission as the single term,
i.e. statement made by party to the litigation .So the legal aspect often creates confusion which ultimately
obstruct delivering of justice.
7.5. Statement on the spot:

Statement made before or after the incident, that is called statement on the spot. As Section 10 of Evidence Act
2031 says that “Anything which is said or done spontaneously in any incidence may be taken as evidence”.
Such type of evidence is also known as statement made as a part of transaction.
24
Analysis and Reform of the Criminal Justice System in Nepal-CeLLRd, 2057
25
NKP 2034,P.138
26
State vs.Porter,32/135,Wigmore ,f.821
27
Prakash Washti, Evidence Law,4th edition,2053(Kathmandu, Paribas Prakashan),p.122
22
Similarly in Section 6 of Indian Evidence Act 1872 has made similar provision. It is also known as res jestae. Such
statement, in order to be admissible must be made spontaneously with the incidence. It should not be narrative in
style and should avoid concoction of evidence.
7.6. Who can make such statement?

Any person who has observed the incidence or who has suffered the incidence may make such expressions and
person who observed or heard it may give evidence.
7.7. Rationality:
Any person who has spoken anything exhibiting his/her personal feeling through bodily gesture may be given in
evidence by a person who has come across of him/her. The principle is that such expressions are less likely to be
false.
7.8. Dying declaration:

The word dying declaration means a statement written on verbal of relevant facts made by a person who is dead
or a dying declaration is a declaration written or verbal made by a person , as to the cause of his/her death or as to
any of the circumstances of the transaction , which resulted in his/her death.
Oral or written statement made by person other than the witness which is testifying are not receivable to prove
the truth of the facts stated .Evidence of such statement is said to be hearsay evidence 28.
That means facts are proved primarily by witness. Each witness must give evidence only of matters within his/her
own knowledge.
Dying declaration is no complete unless full names and address of the persons involved are given in it.
Therefore ,only because the deceased in his/her dying uttered first name similar to that of the accused , it was
not proper to accept the persecution version based on such incomplete dying declaration .
Evidence of dying declaration is admissible not only against the person actually causing death but also against
other persons participating in causing death.29
7.9. Ground of admission of Dying declaration:

Dying declaration is of the utmost importance and the evidence as to it should be as exact and full as possible .The
general rule is that hearsay evidence is no evidence and is not admissible in evidence. But dying declaration is
admissible for the following two reasons.
a. As the victim is sole eye witness, exclusion of his/her evidence defeats the ends of justice.
b. Declaration made by a person under expectation of death is presumed to be true.
28
S.P. Tyagi ,Manual of the Evidence ,(Delhi, University Law Publiching,2002),p.233
29
V.R.Manohar, and Dhiraj Lal,,Law of Evidence ,19th edition(Mumbai:Wadhwa and Company Nagur Publication,2002)p.139
23
7.10. Underlying Principle or Maxim:

The admissibility of dying declaration is based on the maxim ”Nemo Moritur Praesumntur Mentiri” means a
man will not meet his/her maker with a lie in his/her mouth .In other words, a person who is about to die would
not lie. Truth sits on the lips of a person who is about to die. Such person would not lie , because he/she has to face
his /her Maker, the Almighty, in the other world. This is the reason why dying declaration is made admissible under
the Section 11 of Evidence Act 2031.
Though dying declarations are not a statement made on oath and no cross examination is possible, yet because of
the solemnity of the occasion, which ensures truth more than a positive oath they are received in evidence. Absolute
guarantee of truth cannot be expected even in case of statements made on oath in a court. This is the reason for
admissibility of dying declarations in necessity. Where it is the only evidence available under the circumstances,
rejection of it may result in injustice. The person, being no more in the world cannot be called in the court to testify
and other evidence is not available to help in determining the truth.
7.11. Condition for admissibility of dying declaration:

For the admissibility of dying declaration, the following conditions are to be satisfied.
a. The declarant must have to died:
Dying declaration to be admissible, the declarant must be dead. If the declarant survives, it is not admissible under
the Section 11 of Evidence Act 2031 but it will admissible as corroborative evidence. In the case of Ram Prasad vs.
State of Uttar Pradesh the Supreme Court of India has observed that “Dying declaration was recorded by the
Judicial Magistrate but the declarant survived. It was held that the statement could not be used under the Section 32
of Indian Evidence Act 1872 but it could be used to corroborate his evidence under the Section 157 of the Evidence
Act30.
b. Injuries must have caused the death:
The declarant must have been dead as a consequence of the injuries inflicted, but not as a consequence of some
other reason or ailment. In the case of Sunder Joshi vs. HMG the Supreme Court of Nepal has observed that “the
incident took place on 2038 – 06 -22.The victim was admitted in to the hospital on the next day .She lodged the
First Information Report (FIR) as to cause of her injuries in the morning and died by the night on the same day.
Supreme Court has taken FIR as dying declaration”31.
c. Statement as to cause of death or circumstances leading to death:
The statement must relate to the cause of his/her death or circumstances of the case resulting in his/her
death .Statements which relate the cause or circumstances not responsible for his/her death are not admissible as
dying declaration under the Section 11 of Evidence Act 2031.
d. Cause of death must be in question:
30
Ram Prasad vs. State of Uttar Pradesh, AIR 1999 SC1969]
31
Sunder Joshi vs. HMG,NKP, 2044,p.577]
24
The statement as to cause of death of the deceased person will be relevant only if the cause of his/her death is in
question.
e. The statement must be complete:
To be admissible in evidence, dying declaration must be complete. This is a matter of common sense because the
deceased might have added something in contradiction to things already stated .It is therefore , necessary that
incomplete declaration should not be received in evidence.
f. In trials for murder the dying declaration of the victim made under the sense of impending death, is admissible to
prove the circumstances which are supposed to guarantee the truth of the statement in the solemnity of the occasion,
when the sense of impending death created a sanction equal to the obligation of an oath.
g.There must have existed a “settled, hopeless expectation of death "if death overtakes the deceased so rapidly that
he/she has no time to reflect or know that he/she is dying , any statement by him/her as to the cause of death is
admissible as a dying declaration[Rvs.Bedingfield(1879)14cox34].
h. The person who is near to the death does not have any love, affection, hatred. They speak truth.
i. The crime is generally done with the plan, so other witness may not be found in such places at this time. The
victim himself/herself will be the best evidence for their death.
j. A person who makes a dying declaration must, however, be competent at the time he/she makes a statement,
otherwise, it is inadmissible32
7.12. Evidentiary Value of Dying Declaration:

The evidentiary value of the dying declaration will vary according to the circumstances of a particular case in which
it is made. While considering the value of dying declaration, the court take into account the whole but not part of it.
Some leading case on this point are-
Pasang Sherpa vs. Nepal Government, the Supreme Court of Nepal has observed that “Defendant has burnt his
wife. Before death, deceased (wife) has said that her husband spread kerosene over her body from the stove kept in
to the kitchen. He lit the fire and burnt and started to dance. She called for water but he kept dancing” 33
Similarly in the case of Government of Nepal vs. Amber Bahadur Ale the deceased said that her husband came
drunk and started to fight with me and spread kerosene oil over her and lit the fire.34
7.13. Dying Declaration is not direct evidence:

Dying declaration is not direct evidence because the original author of the statement was not found on the earth
when they made the statement, they did not make the statement in the face of the entire world but in the privacy
which might have emboldened him/her to say what he/she would not even hint at in public. There was no
opportunity for his/her opponent to test his/her statement by cross-examination [Phipson and Elliot, Manual of the
32
Gyanendra Br. Shrestha,Ain Sagraha(comment on acts with precent),Kathmandu , Pairavi Prakashan 2061,p.81,103]
33
NKP,2065,p.326
34
NKP,2064,p.1443]
25
evidence.35Dying declaration is not the direct evidence so the reliability of the witness is not seen as compared to
direct evidence.
7.14. Expression made by a person who cannot found:

Section 12 of Evidence Act 2031 has made elaborated provision stating the conditions when an expression made by
person who can not be found is relevant.
The person who cannot found means such type persons as
a. Who is dead?
b. Who has disappeared and not known to anybody
c. Who has been interfering by his/her opponent from attending at the court?
d. Who is out of jurisdiction of the court?
e. Who cannot be compelled to give evidence such as privileged witness?
f. Who cannot be procured easily without an amount of delay or expenditure?
7.15. Facts recorded in public documents:

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
7.16. Facts recorded in book of account:

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.
7.17. Facts public in Books and Articles:

Any books which are written by experts are offered for public sale can be taken a source of information in court
proceedings, any thing stated in such books may be given in evidence without calling the author as witness. For
example, The Medical Jurisprudence, written by Dr. Modi.
Any statement which is designed to provide information to particular profession and which is offered for public sale
may be given in evidence in any court proceedings. According to Section 16 of Evidence Act 2031, such statements
are taken in evidence on the ground that are designed for professional activities and are less likely to be false. So
whether a doctor was qualified person at a given time, statements published by medical council may be given in
evidence.
35
Universal Law Publishing Co.Pvt:2001)p.233,234
26
7.18. Statement given by Witness in other case:

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.
7.19. Documents prepared in the time of investigation:

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.
a. 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.
b. If it is Syracuse Report, the witness needs not to come to testify at preliminary hearing in the court.
7.20. Certificate, Report and special Kinds of Statics:

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.
Chapter Eight
8. Expert Reports and Opinions:
Definition:
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
27
expert who have long time experience about such matter of handwriting, a person who observed someone
handwriting from long time before. According to Section 23 of Evidence Act 2031, stated that “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. 36
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.37
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 finger
print impression are relevant facts. Such people are 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.
8.1. Quality of an Expert Witness:

An expert is a specialist in the respective field and called as a witness in the court at that capacity. The qualities
which possesses by expert witness are different from ordinary witness because generally witness can not give their
opinion, but the expert generally make their opinion. Therefore, there are some important qualities of an expert
witness as,
a. Expertise
An expert must have expertise or specialization in subject he/she testifies in court. That is main reason of
summoning him/her. The question of expertise may be decided upon the basis of an inquiry into academic
achievements, professional training, experience in trade, means at the command and the application of those for
coming to conclusion.38
b. Clarity:
The language used by an expert must be simple, clear and comprehensive even to ordinary people. The subject
should be able to present his/her evidence in clear words and if possible, through charts, photography, sketch and
phomicrographs and make his/her opinion demonstrative so that same could be appreciated by a lay person. 39
36
Bryan A. Garner, Black’s Law Dictionary(St.Paul ,West Group,1999]
37
James A .Ballentine,Ballentine’s Law Dictionary (New York, The Lawyers Cooperative Publishing,3 rd Ed]
38
R.M.Jhala and K.Kumar,Medical Jurisprudence (Lucknow, Eastern Book,1997)p.47]
39
Ibid
28
c. Relevancy:
An expert opinion must be relevant to both, the issue in question as well as to the established and recognized
principles and findings of his/her subject. The findings must not be based on assumptions but on relevant data either
from own experience or from the published works of accredited authors.40
d. Reliability:
The court seeks for expert opinion in the presumption that such opinion will be more authoritative or more reliable
due to his/her special knowledge on the subject. Another side of the basis of reliability is non –commitment of the
expert to interests of either disputing party. They should not only be reliable but appear to be so, and that he/she
should satisfy himself/herself against bias arising out of certain cases.41
8.2. Evidentiary value of Expert Witness:

Normally witnesses are not entitled to give their opinion in any proceedings. They should tell whatever they see or
observe but Section 23 of Evidence Act 2031 provides for admission of opinions of different types of Experts in
court, and the value to be given on such opinions as follows;
a. If court has to form an opinion of foreign law, science, art, handwriting or finer impressions, it may take the
opinions of experts of such subject as evidence.42
b. If court has form an opinion on handwriting of a person, it may take opinion of a person who has had opportunity
to see handwriting and is in a situation to indentify handwriting as evidence.43
c. If court has to form an opinion as to relationship between persons, it may take as evidence the opinions of people
who have special knowledge of relationship.44
d. If court has to form an opinion as to meaning of certain words placed in certain places, it may take the opinion of
person having special knowledge of same as evidence.45
Such opinions are however to be admitted as evidence only if an expert comes and testifies in the court 46.The
expert’s opinion is only piece of evidence and cannot be taken as substantive piece of evidence since it is to be
judged along with other evidence. In other words, expert’s opinion must be corroborating with the other evidence.
As for instance, report of handwriting expert is not admissible in evidence in the absence of formal proof. In the
case of Mubark Ali vs. State of Bombay, the Indian Supreme Court laid down that a witness must confine himself
to the facts and not to state of his opinion. 47 But according to Section 23(7) of Evidence Act 2031, author of an
article or book need not be present in the court in person for the article or book to be admitted as evidence. And also
40
Ibid
41
Ibid
42
Evidence Act 2031(1974),Nepal ,Section 23(1)]
43
Ibid Section 23(2)
44
Ibid Section 23(3)]
45
Ibid Section 23(4)]
38. Section 23(5) of Evidence Act 2031
46
47
Mubarak Ali vs. State of Bombay, AIR 1957 SC 857;1957 Cr. LJ 1346(sc)]
29
, if the Post Mortem Report does not contradict with other facts collected during the course of investigation or
if the opponent does not challenge matter in court, the Expert need not come to the court.
8.3. Examination of Expert Witness:

Any expert, who has provided their opinion, should come to the court and he/she has to face various type of
examinations as follows;
a. Direct examination:
The Evidence Act 2031, Section 50(1) provides for the direct examination or examination in –chief. It is the first
stage of examination where the party or attorney of the party as usually is the case in modern litigation, who calls
upon the Expert Witness, examines him/her. So in cases, where the State is party, the Public Prosecutor first
examines the Expert Witness. Further, the reason for any party to call an Expert Witness is to furnish support for
his/her arguments. But the asking of questions by any party or the lawyer of the party to his/her witness that will
lead to the answer desired by him/her.
b. Cross – examination of Expert Witness:

According to Oxford Dictionary of Law, "When the first examination is finished , the first Advocate sits down
and the Advocate of other side , be it defense or prosecution, rises to cross-examine the witness. This examination
of witness by the Advocate for adverse party is popularly known as cross – examination.48
Cross- examination helps the judge to determine the evidentiary value of an opinion. The main objective is to test
the accuracy of the statement made by an expert. Dr. Reddy observed that,” In doing this , the lawyer may try to
weaken the evidence by showing that the evidence given is inconsistent , in accurate, ill- founded, contradictory
and untrustworthy. The cross-examination need not be confined to the facts to which the witness testified in his
examination- in-chief.49
In cross-examination, an expert giving opinion must appear before court as witness. The opponent party subjects
him/her cross-examination .The court must be convinced with the reliability of such opinion. The court does not
follow all types of opinion blindly.
c. Re-examination:
Re-examination is the third stage of examination. The Evidence Act 2031, Section 50(2) states about re-
examination of witness. First party of case or who asked questions first with the expert can ask or clarify certain
question under the permission of Bench.
8.4. Case law relating to Expert Opinion:

48
Oxford Dictionary of Law,1997
49
K.S.Narayan Reddy, Medical Jurisprudence and Toxicology(Hydrabad,ALT. Publication,2003),p.21]
30
The Supreme Court of Nepal generally gives preferences to the opinion of expert. It is only sometimes that the
court does not consider the Expert Opinion as evidence
1. In the case of HMG vs. Rajesh K.C. and others,”Semen was found on the clothes of the victim and the person
accused of rape. The forensic report was positive during the examination of vaginal swab of the victim; the
Supreme Court in this case convicted the accused on the ground of Doctor’s medical report.50
2. Similarly in the case of Sideni Sah Kanu vs.Prabhu Sah Kanu,”the disput was whether the number ‘0’ had been
altered into ‘7’ or not? The expert opined that ‘7’ in the disputed writing and ‘7’in the writing in other places were
different .The writing of the disputed number ‘7’was written by different ink, contained plenty of hesitation marks
and tremors, and the pen pressure was very thick. The Supreme Court observed that the number ‘7’ was made by
altering number ‘o’.51
3. Similarly in the case of Prem Bahdur vs. Ganesh Das, the Supreme Court has observed that the written signature
deserves greater importance rather than finger prints impressions if the party executing it seems to be an educated
person.52
4. However in the case of Hanif vs.HMG, the Supreme Court rightly held that expert opinion given merely on the
ground of inference and not on reliable grounds cannot be relied upon.53[NKP, 2025(1968), p.94]
5.Similarly in the case of Milki Ram vs. HMG, the Supreme Court decided that where the doctor is supposed to
be , limited to corpse, if doctor gives an opinion on such things that does not conform the condition of dead
body , such opinion cannot be relied upon.54
Chapter Nine
9. Burden of Proof:
9.1. Definition:
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”.
50
NKP,2060(2003),p.377
51
NKP,2060(2003)p.455].
52
NKP,2025(1968),p.94]
53 .NKP,2O3291975),p.92
53
54
NKP,2026(1969),p.341] .
31
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.
9.2. Burden of proof on prosecution:
Section 25 of Evidence Act 2031lays down that in criminal cases the prosecution must bear burden of proof to
establish the guilt .He/she must prove it beyond the doubt. The accused need not prove anything on his/her part to
show his/her innocence. He/she may remain silent throughout the trial and observe the case being proved against
his/her on the strength of evidence. In case of any doubt and he/she is entitled to acquittal. This is general rule.
9.3. Burden of proof on the plaintiff:
According to Section 26 of Evidence Act 2031 says that in civil case "burden of proof" lies on the plaintiff to
establish his/her claim. The court hears the defendant at the same party with plaintiff and adjudicates the case on
balance of probability.
9.4. Burden of proof on the defendant:
Section 27 of the Evidence Act 2031 lays down that in criminal cases the defendant puts forwards his/her
defense , if he/she chooses so, to show that he/she is innocent or he /she is not liable fully for the consequence
of charge made against him/her. Therefore, he/she may plead self-defense, accident or provocation in order to
immune himself/herself from punishment or mitigate it as per the merit of the case. If he/she does so the onus lies
on him/her to prove it.
Similarly in civil cases the defendant must bear burden of proof if he/she wants the court to believe that the liability
attached to him/her has already been partly or fully discharge in favor of the plaintiff. In other words it is know as
adverse burden of proof.
9.5 Burden of proving specific fact:

Section 28 of the Evidence Act 2031 says 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 holds good if such situation does
arise. Such as, in trafficking offence information given by the victim, the law has placed onus of proof on the
accused to show that the information was untruth. In Narcotic Drugs case the person who is found in possession
of such drug is presumed to be guilty the law has laid down that onus of proof lies on him/her to show his/her
innocence. Similarly in corruption charge if a person is living at such standard , which is lawful income does
not allow, the law has placed onus of proof on him/her to show that the property earned by him/her was
through lawful means. In other cases the party making special plea must prove it on his/her own responsibility.
Such as if any person pleads defense of alibi, he /she must prove it by himself/herself.
9.6. Rebuttal of Presumption:
32
According to Section 29 of the Evidence Act 2031 stated that there are certain facts, which are presumed by the
court in favor of either party to the litigation. Presumption of law is 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 is 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.
9.7. Burden of proving fact which is in specific knowledge of the party:

Section 30 of the Evidence Act 2031 states that , any fact which is specific knowledge of the party to the litigation ,
it should be proved by the same party to the satisfaction of the court , for example , in a charge for travelling train
without ticket, the party claiming that he/she had a ticket at the given time , must prove it by himself/herself. It is
a fact within special knowledge of him/her. This rule does not cover facts like intention, motive even though they
are within special knowledge of the party concerned.
9.8. Burden of proving such fact which is condition precedent to some other fact:
Section 31 of the Evidence Act 2031 lays down that, there are certain facts which are admissible on proof of some
other facts. As in dying declaration admissible is only the evidence which proof that the person saying so 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.
9.9 Burden of proving whether a person is alive:

Section 32 of the evidence Act 2031 lies 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.’55
8.9. Presumption of Ownership:
55
AIR 1995 SC 995
33
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 any
body denies that the possessor is not owner, the burden of proof lies on him/her.
Chapter Ten
10. Estoppels:
Definition
‘Estoppels ‘is derived from the French word ‘Estoup’ which means “shut the mouth”. When a person tells us
something , we generally hear him/her .If he/she says something different or contradicting , we would not hear
any more and contradict such statement .Otherwise ,we shall comply with it. a person by declaration (act or
omission) makes/induces another to believe a thing, can not deny its truth subsequently. The other person cannot
be stopped from proceeding upon such declaration. Estoppels is a rule of evidence , by which a person is not
allowed to plead the contrary of a fact or state of things, which he/she has formally asserted as existing.
As per the Sec.34 of Evidence Act 2031,”any body who represents to other by word or by writing or by conduct
any fact which the other party believes on it and works upon it, the first party is stopped from denying the fact
in the suit that follows.”Similarly Sec.115 of Evidence Act 1872 embodies the principle of estoppels. It runs as
follows, when one person has , by his declaration , act, or omission intentionally caused or permitted another
person to believe , neither he/she nor his/her representative shall be allowed , in any suit or proceeding between
himself/herself and such person or his/her representative , to deny the truth of the thing.
10.1. Basis and underlying principle:

The principle of estoppels is based on the principle of equity and good conscience .The object of the principle of
estoppels is to prevent fraud and to manifest good faith amongst the parties .This principle is enshrine in the
Roman Maxim’Allgans Contraria Non Est Audiendus.’It means ‘a man alleging contradictory facts ought not be
heard.”This principle of estoppels was laid in the case of Pickard vs. Seers56.
The object of the doctrine of estoppels is to protect the interest of a person who acted in good faith, believing the
statement of another. It is based on the three moral principles as stated below:
a. No one can blow hot and cold in the same breath.
b. No one can take the advantage of one’s wrong; and
c. No one can approbate (accept) and reprobate (reject) at the same time.
Essential Elements:
To constitute’ estoppels ‘the following conditions are to be satisfied.
56
Pickard vs.Seers 1832 A&E 469.
34
a. There must be a declaration (act or omission) on the part of one person, intentionally causing or
permitting another person to believe a thing to be true.
b. The other person (to whom the declaration is made) must believe that thing to be true.
c. There must be some act in pursuance of that belief.
10.2. Kinds of estoppels:

We may categories estoppels as follows:
a. Estoppels 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.
b. Estoppels 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.
c. Estoppels by Conduct (Estoppels 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.
d. Promissory Estoppels:
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 UP57, 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 every body 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.
Chapter Eleven
11. Plea of Alibi:
11.1. Definition:
Alibi is the Latin term, which means’elseweare’.Alibi is a piece of evidence that one was elsewhere and alleged act
took place, an excuse.58
57
AIR 1979 SC 621
58
S.R.Mynery,The law of Evidence 9Hydrabad ,ASIS Law House ,2008),p.22
35
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 justification59.
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. 60
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 party61.
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 62.Basically legal burden lies on prosecution in criminal case and
plaintiff in civil case. It does not mean 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 63.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.
11.2. 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
59
Oxford Dictionary, revised edition 2000].
60
Ballentines Law Dictionary
61
Black’s Law Dictionary , 7th edition,p.72
62
Alan Taylor,Principle of Evidence (London ,Canvendish publish limited,2nd edition)p.14].
63
TraceyAquino,Essential Evidence(London ,canvendish publish limited, 1997)p.16
36
personal participation in the fact. Thus the evidentiary fact is a new affirmative proposition consider as the factum
probandum through its logical operator is negative one.
11.3. When accused can take Plea of Alibi:

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.64.If alibi evidence established by inspected and unbiased testimony, it would be the best evidence to
satisfy the court.
11.4. Application of Plea of Alibi:

Plea of Alibi is known as adverse burden of proof. Generally Courts are not accept plea of alibi easially.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 a circumstances where plea of alibi is not proved then the confession made before the
police, as in the case of HMG. vs. Alikha Mushalman 65and the witness testimony , as in the case of Yogya Narayan
vs. Badrinath Khanal66has 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 67, 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 68, 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.HMG69,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.
Chapter Twelve
12. Procedure Relating to Collecting Evidences:
12.1. Definition:
64
S.R.Myneri, The law of evidence (Hydrabad ,Asis Law House ,2008).p.124
65
NKP,2040,p.90
66
NKP,2046,p.956
67
NKP 2021,p.53
68
[NKP,2034,p.173
69
NKP,1046, p.413
37
Evidences as something legally submitted to a competent court as means of determining the truth or otherwise of an
alleged matter of fact under the investigation.
12.2. Objective of evidence collection:

 Establish relation between ‘scene of crime’ and ‘victim and suspect( as per the doctrine of exchange:
when any two objects come in contact with each other c/o Locard’s Principle that there is always an exchange
of particles in between them. Exchange of particle in between them)
 The court looks into existence and non- existence of facts through the submitted evidences.
12.3. Site of evidence collection:

There are three site of evidence collection as
(A). Scene of crime:
After reaching the scene of crime, the investigation officer searches for evidence. They may use 4 methods of
locating evidence are Spiral, Wheel, Zonal and Grid .Thus after locating the collection of evidences starts. First of
all the fragile evidences must be collected because they are likely to be contaminated easily and may loose its
evidentiary value. The evidences like fingerprints and body fluids must be given first priority.
1. Fingerprints:
Mostly it found in ‘point of entry ‘of the spot. If everything are visible they can collect through scaled photography
but everything are not visible then they need to be developed and lifted through scaled photography. If finger print
is found in small portable objects the whole object is send to the forensic lab separately.
2. Body fluids (Blood, salvia, semen, urine): If body fluids are fresh they are collected by means of a dropper or a
pipette and placed in clean glass bottles and generally avoid plastic containers. If they are dried it is scrapped out by
clean blade and placed in a clean paper or cellophane bags separately. If body fluids are present in clothes, bed-shits
etc. In such cases the whole stained cloth or piece containing the stain must be cut and send to the lab.
3. Hair, Fiber and Glass fracture;
They are collected by means of forceps and placed in a clean paper. Every piece of evidences must be collected
separately.
4. Weapons, Bullets, and Cartridges;
These are collected by cotton gloves or with the help of clean white handkerchief and placed in wooden boxes with
support in between. They are packed separately for lab.
5. Foot-Prints and tire marks:
These are mainly found in out-door scene of crimes. The print or caste is developed by experts in the scene itself.
Such prints developed are photographed by means of a scale and is taken to the lab.
(B).Victim:
38
Sample of blood (15-20 ml), hair, cloth, finger print are to be collected. The whole body of the victim is also
photographed as evidences to show any marked if any in the whole body of the victim.
(C) Suspect and his/her surrounding:

Cloths, blood, hair, seem, handwriting, finger print etc. is collected from the suspect as the case demand.
Chapter Thirteen
13. Custody of Physical evidences:
13.1. Definition:
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. 70Physical evidence is reliable evidence,
which can prove the presence of offender in scene of crime, the notion behind this is “every contact leaves t
trace”71.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. 72
Any evidence which has high degree of probability has a origin of a particular source. The ability to established
individuality distinguishes this type of physical evidence from that possessing only class charecterstic.Such as,
finger print, foot print and palm print.73
13.2. Significance of Physical evidence:

a. Identification:
70
H.J.Walls,Forensic Science (An Introduction to Scientific Crime Detention)University Law Publishing Co.2 nd edition , p.3
71
Ibid
72
Swanson, Chameli and Terrto,Criminal Investigation,MC Graw Hill , 8th edition , p.70
73
Ibid.
39
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.74
b. 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 [Ibid]
13.3. Principles of Physical Evidence:

Basically physical evidence is based on certain principles. These are follows;
a. 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. 75The 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 76.
b. 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 comes in contact with the victim or the object surrounding him/her, they
leave 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 3 rd 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 offender's remains in the body of
the victim. By that traces the offender can be find out easily.
c. Principle of Progressive Change:
74
Rechard Saferson , Criminalitics, An Introduction to Forensic Science ,Prentic Hall Hood Cliffs, New Jersey , 5th edition, p.61.
75
John J.Hargon, Criminal Investigation,MC Graw Hill book co.1974 1st edition ,p.15
76
B.R.Sharma,Forensic Science in Criminal Investigation and Trial,Univessity Law Publishing Company ,2005, 4 th edition,p.14]
40
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. 77 So this principle demands that prompt action in
all aspect of criminal investigation.
d. Principle of Comparison:
Only the likes can be comparing. 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 these 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.78
e. Fact does not lie:

Fact itself remains 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.79
13.4. 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.
Chapter Fourteen
14. Examination of witnesses:

14.1. Meaning:
77
Ibid n15
78
Ibid,p.6
79
Ibid ,p.6]
41
Examination means testified to the witness about relevancy to find out witness knowledge, confidence, so no for the
subject matter. Interrogative of witness by the opposition party is called cross examination. Cross examination is
also said to be ‘the greatest engine even invented for the discovery of earth80.
Cross examination is’ the questioning of a witness at a trial or hearing by the party opposed to the party who called
the witness to testify81.Cross-examination ‘the most effective art of the skilled trial lawyer; the interrogative of a
witness for the opposing party by questions formed to test the accuracy and truthfulness of his/her testimony on
direct examination and to bring out the truth of matter in issue; an absolute rights in action and proceeding 82.
According to Taylor, cross-examination is ‘the motives to prevent truth are so much numerous in judicial
investigation than in the ordinary affairs of life that the danger of injustice arising from this cause’
Cross-examination of the witness is the process of purity the fact from the witness of the opposite party. It does not
protect the rights of the party, must have both the right and opportunity of cross-examination. Cross-examination is
one of the greatest weapon of the testing the veracity of a statement made by a person. It is both, sword of attack
and a side of defense.
14.2. Purpose:
Cross-examination is designed to serve one or more of the following purposes as
a. To damage or destroy the opponent,
b. To substantially discredit the witness,
c. To support one’s own the case
According to Cross and Wilkins, the objective of cross-examination on conducted or on behalf of the opposite party
are
a. To elicit evidence directly relevant to the issued which is favorable to the cross-examiners case and
b. To discredit the witness.
The very purpose of the cross-examination is to ask the question regarding to what the witness has stated in the
examination in –chief are in the case of that witness and particularly when the witness is a party to the proceeding
of that party. The entire questions which are asked with a new challenge the evidence-in – chief are
permissible .The motives to prevent truth are so much more numerous in judicial investigation than in the
ordinary affairs of life and the danger of injustice arising from this cause.
14.3. Classification of cross-examination:

There are two different types of cross-examination as
a. Supportive (Concessional Based) and
b. Discrediting
80
M.Moonir, principle and Digests of law of evidence, Allahabad, the University Book Agency,1995,p.1403].
81
Black’s Law Dictionary
82
Ballentine’s Law Dictionary
42
a. Supportive:
This type of cross-examination is employed when one wants to ask questions and get answers that support and
advance the case. In supportive cross, questions are not used to attack, pillage and plunder the witness. Instead,
cross is used to obtain favorable information, e.g. admissions, fill in- gaps in the story facts etc. from the witness. If
one can develop favorable evidence from the opposition’s witness/he/she can then argue, "Their own witness said
(insert the testimony favorable to your position).”It adds creditability to the evidence if it comes from an opposing
witness. If someone is gong to rely on the evidence from an opposition witness, it may not make sense to attack the
credibility of that witness. Occasionally, the testimony on direct may be so helpful to the theory of the case that
he/she simply have the witness repeat it on cross and pass the witness. In most instances, the favorable evidence
that will accrue from opposition witness will come in small increments.
b. Discredit Cross-examination:
A discrediting cross-examination occurs when one attempts to discredit the believability of a witness, factual
testimony by showing that it does not jibe with common sense or with what other say. He/she may want to use
cross to show what the witness does not know or what the witness did not do in investigation. He/she may want to
employ cross to impeach the witness. Evidentiary procedure and rules provide a number of traditional modes of
impeachment. For example, a witness may be impeached by proof of inability to understand the nature and
obligation of an oath to tell the truth.
14.4. Importance of cross-examination:

Cross-examination is one of the important process of purify the truth in the case and it plays a vital role to
differentiate true or false. Cross-examination is a powerful and valuable weapon for the purposes of testing the
veracity of witness and the accuracy and completeness of the story. It is entrusted to the hands of the counsel in
the confidence that it will be used with discretion, and with due regards to assistance to be rendered by it to the
court, not forgetting at the same time the burden that is imposed on the witness.
We can categories importance of witness as
a. Cross-examination test misrepresent or true represent the witness in the case,
b. It is a way of collection of real information about the incident,
c. When the witness comes contradicts, it creates some doubt about the incident,
d. Court gives priority for cross –examination of witness and takes strong evidence of the statement of the witness,
e. Cross-examination helps to give primary and secondary fact in the relevant case,
f. Cross-examination helps the court to find out the judgments,
g. Cross-examination helps to advisory party to make argument.
43
14.5. Who can be a witness?

Any person , who is able to understand question put to him/her and who is able to give intelligible answer to it,
is regarded as a competent witness , if he/she comprise the requirement stated above. A dumb person can relate
his/her story through signal or in a written form. This is also regarded as oral evidence.
14.5. (1) who can be best witness?

Evidence given by a witness, who has good character or high moral standard carries great weight age in any court
proceeding.In order to insure the capability of the witness, witness must encounter the following requirement of the
law as
a. He/ she must take oath before giving evidence.
b.He/ she are subjected to cross – examination by his /her opponent.
c.He /she is liable to punishment under perjury if, he/she speaks untruthful story in the court.
d.His/her gesture or mode of presentation is observed by the court. This is very much necessary to see how far
he/she is confident in his/her expression and spontaneous in his/her presentation.
But in England every one can be a witness.
As per the Criminal procedure (Attendance of witness Act) 1965 stated that all same adults not subject to sovereign
or diplomatic immunity are competent and compellable to give evidence subject to the exception relating to the
accused and his/her spouse.
14.6. Child Witness:

A child of tender age may be allowed to testify /give evidence if the Court is satisfied that he/she has capacity to
understand the question put to him/her and gives rational answers to those questions. The Indidian Evidence Act
1872 prescribes no age limit as to competence of giving evidence. Even a child of 3 or 4 years old is competent to
give evidence provided; he/she is competent to give rational answer to the questions put to him/her. A child witness
below the age of 12 years need not administer oath before giving evidence, since he/she is ignorant of the moral
significance of the oath. Generally the court entertains the evidence given by the child witness , conducts a test
known as ‘Voire Dire Test’ by putting certain questions unconnected with the case like who are you? What is your
name? What is your father name? Where do you live? If the child gives rational answer to such questions, the court
satisfies that the child is a competent witness and allows putting questions to the child, pertaining to the case. In the
case of Krishna Prasad Shimkhada vs.HMG, The Supreme Court of Nepal has observed that generally court can not
rely the statement made by the lunatic and child witness. 83but in the case of Gyan Prasad Rai vs.HMG, the Supreme
Court has observed that there is no any situation the child will speak lie, so the statement made by the child shall be
admissible. In early days child witnesses were not admissible in England but in the case of R.vs. Brasier court has
made decision about the admissibility of child witness.
83
NKP,2026,P.59
44
14.7. Value of Child Witness:

A child of tender age does not take oath; neither can he/she be cross-examined, rigorously. If his/her story proves
untruthful, he/she can not be penalized under perjury. Therefore, evidence given by child witness is always
regarded as weak evidence. It must be collaborated by some other evidence in order to rely upon it. Even an
accomplish can be a witness but his/her evidence carries less weigh age and requires corroboration. The same hold
good if an accused present himself/herself as witness.
14.8. Dumb Witness:

Evidence given by the dumb witnesses is admissible. A deaf and dumb witness cannot speak and understand the
question put him/her. Earlier, it was thought that deaf and dumb person were regarded as idiots and were not
competent to give evidence. However, modern science reveals that deaf and dumb person are mush more intelligent
than any other normal person, and are competent to give evidence. Thus , a person , by reasons of dumbness or
otherwise , is unable to speak may give evidence by means such as by writing or by signs.
According to Section 119 of Evidence Act 1872 of India,” A witness who is unable to speak may give his/her
evidence in any other matter in which he/she can make it intelligible , as by writing or by signs; but such writing
must be written and the signs made in open court. Evidence so given shall be deemed to be oral evidence and it is
admissible.”
14.9. Number of witnesses:

The Evidence Act 2031 does not declare any particular number of witnesses but general practice is not less than
two witnesses in any case. It is not mandatory. If we see the provision of Indian Evidence Act 1872, also does not
talk about any particular number of witnesses in any case. How many witnesses are necessary for the proof of a fact
is wholly left to the judgment of the court. The Supreme Court of Nepal has in number of cases sustained
convictions on the basis of the testimony of a sole witness. Section 134 of the Evidence Act 1872 of India says that
it is not the number of witnesses that is important but the quality and credibility of the witnesses that counts.
14.10. General rule relating to examination of witness:

Section 48 of Evidence Act 2031 states that , there are two type of rule regarding to examination of witness as
General rule and Specific rule.
a. General rule: the general rules are as follows-
1. The witness must be administered oath before giving evidence.
2. All witness must examine, wherever possible, on the same day.
3. Where there is more than one witness, one witness must not be allowed to hear the other in the court.
4. The opponent party must be given opportunity to cross-examine the witness.
45
5. At the completion of the deposition the witness who has already been examined can not be re-examined without
permission of the court. With the permission of the court he/she may examined on such matter which has been
omitted in the first examination and this proceeding known as Tatimba Sabal.
b. Special procedure relating to examination of witness:

Witnesses are examined in three stages .They are
1. Examination – in- chief,
2. Cross- examination and
3. Re- examination.
1. 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
(a)Where the subject matter is beyond controversy and (b) 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.
2. 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 parts 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:
A.to testify his/her veracity (correctness)
B.to discover, who he/she is and what is his/her position and
C.to shakes his/her moral character
46
3. 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;
A.If not objected by the adverse party or
B.With the permission of the court or
C.Already sufficiently proved matter (undisputed)
The other adverse party may further re-cross examine the witness.
14.11. Leading question:

Leading Question means “a question, which by itself suggests the answer as expected by the person, asked / put the
same.
Bentham says “leading question as a question is a leading one, when it indicates to the witness, the real or supposed
fact, which is the examiner, expects and desires to have confirmed by the answer.
As for example:
A. At time of commission of crime you were on the spot?
B. Did you see Mr. A on the spot?
C.Have you been friend of Mr.A since long time?
D.On the spot you did not say anything to accused?
E.Accused was attacking victims by Khukuri?
14.12. When leading question must not be asked:

Generally leading question must not be asked in Examination in Chief or in Re-examination except with permission
of the court. The court shall permit leading questions as to matters which are introductory or undisputed or which
have in its opinion, been already sufficiently proved.
14.13. Objection to leading question:

Adverse party can oppose to ask leading question during the Examination in Chief or Re-examination. Objection to
the leading question is not that they are illegal but only that they are unfair. The rule excluding leading questions is
intended to prevent unfairness in the conduct of the enquiry. The court has absolute discretion to allow or not
leading question.
14.14. Hostile witness:
47
The word ‘hostile’ literally means unfriendly .A witness is generally expected to give evidence in favor of the party
to whom he/she is called. But in certain cases such witness may unexpectedly turn hostile and gives evidence
against the interest of the party, who has called him/her. Such witness is called ‘hostile witnesses. He /she are also
known as ‘Adverse witnesses or ‘Unfavorable witnesses. A hostile witness is one who form the manner in which
he/she gives evidence shows that he/she is not desirous to telling the truth to the court.
Where the witness is adverse to the party called him/her, such party is not entitled as of right to cross –examine the
witness. The matter is entirely in the discretion of the court whether to permit to the person calling the witness to
put any questions to him/her, which might be put by the adverse party in cross-examination. Before putting such
question, the party must take permission from the court. In the case of Sat. Paul vs. Delhi Administration the
Supreme Court of India observed that witnesses were supposed to be independent, made contradictory statement
and the prosecution with permission of the court can cross-examine them.84
14.15. Credit of hostile witness:

Principally, the court relies upon the evidence given by the witness to arrive at the truth or falsity of the claim or
charge in the litigation. Some times, the witness called by the party turns hostile and it is not safe to rely upon such
evidence. Then the parties may be provided with an opportunity to give independent testimony by impeaching the
credit of witness.
The credit of witness may be impeached in the following ways by the adverse party or with the consent of the court
by the party who called him/her;
a. By the evidence of persons who testify that they, from their knowledge of the witness, believe him/her to be
unworthy of credit.
b. By proof that the witness has been bribed or has accepted the offer of a bribe or has received any other corrupt
inducement to give his/her evidence.
c. By proof of former statements inconsistent with any part of his/her evidence which is liable to be contradicted.
14.16. Cross- examination is an art:

When thinking about cross-examination , it is important to keep in the mind that its primary purposes is
destructive – to destroy the credibility of the witness by suggesting that the witness did not perceive correctly,
does not remember accurately what he/she saw, is not communicating accurately , what he/she thinks , he/she
remembers, he/she saw or is lying .Thus most of the cross –examination , when it is not eliciting new facts that the
witness has not testified to on direct –examination in order to help build the cross-examiner’s case-in –chief or
defense, attacks perception , memory, clarity or sincerity. Sincerity is the most complex of these testimonial
capacities and is itself often broken down into bias, prejudice, interest and corruption.
84
AIR 1976,SC at p.303]
48
Cross-examination is often spoken by trial lawyers as the ultimate trial art-the most difficult skill for a lawyer to
master, requiring years of practice, an intuitive grasp of human psychology and understanding of the legal subject
matter, the judge and jury’s subjective needs and biases, and all of the information contained in the World
Almanac(just incase the witness testifies on direct that he/she saw the crime committed in the moon light in
which there was no moon).Young lawyers, however, often find that asking the non object able question on direct
examination is a bigger problem. But direct examination is mostly a matter of knowing what the foundational
requirements are for the evidence you want to elicit, asking the question in proper order (starting with who is
witness? what is her connection to the case?) to establish the necessary foundation and allowing the witness to tell
the story. Allowing the witness to tell his/her story makes not only good sense from an advocacy perspective; it is
what the rules require. Leading questions should not be used on direct examination or with friendly witness on
cross-examination.
However cross-examination is the best test of truth or falsity. It helps to purify truth and fair justice. Cross-
examination of the witness helps to collect other evidence. Cross-examination of the witness is the process of
purifying the facts, collection of the facts fro the witness of the opposite party. The proper exercise cross-
examination is regarded as one of the most effective test which the law has devised for discovery of truth. It is a
most effective of all means for extracting truth and exposing falsehood.
Chapter Fifteen
15. Privileges of Witness.
15.1. 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. Those communications which cannot be compelled to be
disclosed are 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 is entitled.85
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 86 .Phipson said that there are mainly three reasons
behind the privilege of witness as
a. National Security,
85
S.R.Myneni,The Law of Evidence (1st edition),Asia Law House , 2007-08,p.612].
86 ?
Prakash Wasti,Evidence law (4th edition)Kathmandu, Pairavi Prakashan,2053,p.198
49
b. Proper function of public service and

c. Information for the detection of crime.
15.2. 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:
a. 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.87
b. 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 88.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 89.
c. 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 that 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 independency of judiciary and allow the judge to act freely, the law has adopted this rule 90.
d. State Privilege:
87
Section 40 of the Evidence Act 2031]
88
Section 41 of the Evidence Act 2031
89
Richardson, Evidence law,115 Mis C106,107 187NYS383].
90
50
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 privilege91.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 92. 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
204793
e. 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 only94.
f. Privilege against self-incrimination:

No person is bound to give evidence against him/her. 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 95.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
91
Section 43,44 of the Evidence Act 2031
92
NKP,2034,p.99
93
NKP, 2062,writ no.2850].
94
95
Section 47 of the Evidence Act 2031
51
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
verbatim96and 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 97.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/herself98.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.
96
NKP,2031, p.
97
NKP, 2051,p
98
NKP, 2051,p
52

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Keshab Bhattarai /LL.

B 3rd Year/ Evidence law/ Handout by Prakash Sir/2068

Chapter one Chapter Ten

As per the Indian Evidence Act, 1892 Evidence means;

b. General principle of the law of evidence:

c. Nature and scope:

Quasi Judicial Sector:

2.2. Historical Development of evidence law of Nepal

1. Ancient notion of law and justice:

3. Representation in the litigation:

4.2. Fact in issue:

5.1.) Formal Admission:

Person competent to make admission:

b. Presumption of Fact (May Presumption):

7. Deposition and Testimony

7.1. Admission of confession

a. Confessio in Judicio Omini Probation Major Est:

b. Confessio Facta in Judicio Est Plena Probatio:

7.2. Classification of Confession:

7.3 Legality of Confession:

a. He must have made it in his consciousness:

7.4. Record of the statement of Suspect:

7.5. Statement on the spot:

7.6. Who can make such statement?

7.8. Dying declaration:

7.9. Ground of admission of Dying declaration:

7.10. Underlying Principle or Maxim:

7.11. Condition for admissibility of dying declaration:

7.12. Evidentiary Value of Dying Declaration:

7.13. Dying Declaration is not direct evidence:

7.14. Expression made by a person who cannot found:

7.15. Facts recorded in public documents:

7.16. Facts recorded in book of account:

7.17. Facts public in Books and Articles:

7.18. Statement given by Witness in other case:

7.19. Documents prepared in the time of investigation:

7.20. Certificate, Report and special Kinds of Statics:

8.1. Quality of an Expert Witness:

8.2. Evidentiary value of Expert Witness:

8.3. Examination of Expert Witness:

b. Cross – examination of Expert Witness:

8.4. Case law relating to Expert Opinion:

9.5 Burden of proving specific fact:

9.6. Rebuttal of Presumption:

9.7. Burden of proving fact which is in specific knowledge of the party:

9.9 Burden of proving whether a person is alive:

8.9. Presumption of Ownership:

10.1. Basis and underlying principle:

10.2. Kinds of estoppels:

11.2. Principle of Plea of Alibi:

11.3. When accused can take Plea of Alibi:

11.4. Application of Plea of Alibi:

12.2. Objective of evidence collection:

12.3. Site of evidence collection:

(C) Suspect and his/her surrounding:

13.2. Significance of Physical evidence:

13.3. Principles of Physical Evidence:

c. Principle of Progressive Change:

e. Fact does not lie:

13.4. Application of Physical Evidence: