Key Principles of Evidence Law in Nepal Explained

Evidence law is a fundamental aspect of the legal system that governs the presentation, admissibility, and evaluation of evidence in judicial proceedings. It ensures that decisions are made based on reliable and relevant facts, contributing to a fair and just legal process. The principles of evidence law, such as relevancy, the best evidence rule, the hearsay rule, the burden of proof, and estoppel, serve as guiding frameworks for courts to assess evidence effectively. These principles have evolved over centuries, from ancient Hindu legal traditions to modern legal systems, ensuring the integrity and efficiency of judicial proceedings while safeguarding the rights of the parties involved.

Basic principles of evidence law

In a rational system of adjudication, the decision in a disputed issue is made on the basis of an evaluation of evidence based on certain basic principles which have developed in the long run one after another. Hindu scholars in ancient times had developed the principles governing the presentation, examination, and evaluation of evidence. The best evidence rule and the rule regarding hearsay were developed in Hindu law during the Smriti age. However, this principle was developed in common law during the 18th century.

The basic principles of evidence must be followed in judicial proceedings whether they are written in law or not. The judges have to follow those principles unless there are exceptional provisions expressly made by law. The main principles of evidence law are:

Evidence must be confined to the matter in issue
The best evidence principle
Rule against hearsay or hearsay evidence is no evidence
He who asserts must prove; the burden of proof
Principle of estoppel

1. Evidence must be confined to the matter in issue

It is a basic principle of evidence law that evidence must be confined to the matter in issue. This means that evidence must be relevant to the fact in issue or relevant facts. This principle governs the production and examination of evidence. The evidence that is not related to the fact in issue is not admissible. Irrelevant evidence cannot be presented and examined. The evidence must be confined to the debated issue or issues.

Evidence must be directed and confined to the proof or disproof of the issue as settled by the pleading and in criminal trials on indictment confined to the deposition and notice of additional evidence where appropriate. No other grounds of complaints or defense, not any matter necessary by law to establish those under trial, can be proved. The objective of this principle is to save the time of the court by avoiding the possibility of the presentation of unnecessary evidence. It is for providing an opportunity to the judge to analyze and evaluate the evidence related to the issue to arrive at the right judgment. It avoids the delay and helps the court to settle the case in an easy and speedy way.

When a matter asserted by a party is denied completely or partially by another party, then a disputed question arises. The court orders the disputing parties to present the evidence and examines them to settle the disputed fact. Therefore, the objective of the principle is to help the court to confine itself to receive and examine the evidence related to the disputed fact or collateral fact thereof. This principle has been accepted by Section 3 of the Evidence Act, 2031 and Section 161 of Muluki Civil Procedure Code, 2017. Facts in issue are all those facts which the plaintiff in the civil action and prosecution in the criminal proceedings must prove to success together with any further facts that the defendant or accused must in order to establish a defence. Likewise, facts in issue often have to be inferred from other facts. Those other facts are described as facts relevant to the issue or evidential facts.

An item of evidence is not admitted unless it is relevant to the fact in issue or relevant fact. Thus, relevancy is the first requirement for the admissibility of evidence. Relevance is a general criterion applied to all types of evidence. Relevancy itself is not sufficient for admissibility. The other criteria, which are also called specific criteria, are equally important for admissibility. They are called specific criteria because particular types of evidence must meet specific conditions for their admissibility. For example, oral evidence must be direct, a witness giving an opinion must be an expert, the opinion of an expert must be made after proper examination, and the confession of an accused must be made voluntarily.

2. The Best Evidence Principle

This principle governs the production of evidence and requires that the best evidence should always be presented to the court. This rule does not demand the greatest amount of evidence, which can be given of any fact, but the better evidence which is in the possession of the party has to be presented. It is adopted for the prevention of fraud. Therefore, this rule is essential to the pure administration of justice.

Best evidence must be produced means that the parties have to present the original evidence if it is attainable. A copy of evidence can be produced only if it is not possible or very difficult to present original evidence. Primary evidence is the best or highest evidence, or that kind of proof which the w recognizes, as affording the greatest certainty of the fact in question. Generally, the law requires the parties to produce such evidence until it is out of the capacity of the party.

This principle has been incorporated in Section 35 (1) and 37 (2) of the Evidence Act, 2031. Likewise, Section 22 of the Evidence Act has also indirectly accepted this principle. Section 35 (1) of the act has mentioned about the applicability of the principle which provides that "A document or fact mentioned in the document has to be proved by producing such document" Likewise, section 37 (2) provides that oral evidence must be direct, to mean if the evidence has to be produced on the fact which could have been seen, heard or felt with the help of any sense that evidence has to be produced by the person who has directly seen, heard or felt, as an oral evidence.

However, there are some exceptions to this rule. A dying declaration, a statement of the person made in another case who cannot come to the court or to whom the court cannot summon, is admissible.

3. Rule against hearsay

It is one of the basic principles of evidence law that oral evidence must be direct. Hearsay evidence is evidence given by a witness about what he heard from a third party who is not himself called as a witness. Hearsay is a statement that is made by a person other than the person who had seen or experienced the fact by himself based on hearing from another person. The evidence of such a witness is inadmissible to prove the truth of the fact. The main idea of the principle is that oral evidence must be direct. For the admissibility of testimony of the witness and the admissibility of the matters expressed outside the court in written or oral form, such testimony or statements must be made by the person who has himself seen, heard, or experienced. Such a person must come to the court to testify.

This principle is based on the fact that the person who has seen or experienced the occurrence cannot be cross-examined. However, if the direct evidence or the person who has himself seen or experienced the occurrence comes to the court has taken oath before the court to speak the truth, the law provides for punishment if he se she commits perjury, s/he is cross examined by the opposition party and the judge has an opportunity to observe the demeanour of the witness while giving testimony. The hearsay rule of evidence was developed over two hundred years. During this time, various exceptional cases emerged in which hearsay evidence of different kinds was admitted.

There are some exceptions to the hearsay rule. The res gestae or excited utterance, the statements made in public documents and statements made by persons since deceased have been the exception to the hearsay rule. Declarations made by a deceased person against his pecuniary interest, declarations made by the person in the course of duty, and dying declarations are admissible if such statements fulfill certain conditions.

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter is accepted as evidence. Such statement narrates, describes, or explains the situation without fabrication because it is made under the stress of a nervous excitement caused by such perception of the event. Such statement is admissible as evidence if the declarant is unavailable as a witness, a statement was made by the declarant at a time when the matter had been recently perceived by him, and his recollection was clear and was made in good faith before the commencement of the legal action.

4. He who asserts must prove: the burden of proof

This is an important principle of Evidence law. All other principles of Evidence law are based upon this principle. This is also called the rule of convenience, which governs the production of evidence. According to this principle 'the burden of proof lies on the party who substantially asserts the affirmative of the issue. This is an English version of the Roman expression "Ei qui affairmat, ei qui non negat, acumbite probatio. If the person asserts something and cannot prove it, then he has to bear its consequences. There are two simple reasons for the adoption of this principle. This principle is adopted not because it is impossible to prove a negative, but because it is easier to prove the affirmative than the negative. Secondly, it is reasonable and just that the party who relies upon the existence of a fact should be called upon to prove his case.

In both civil and criminal cases, the burden of proof lies with the plaintiff. It is a fundamental principle of the adversarial system that in criminal cases, the prosecution bears the burden of proving the guilt of the defendant. There is a presumption of innocence in criminal trials, and the onus is on the prosecution to prove beyond reasonable doubt that the accused is guilty of the offence charged. However, if raises defense of exemption from criminal liability or of diminished responsibility the burden of adducing evidence to show that there was the existence of the condition of defense lies with the accused. It is not the burden of prosecution to disprove all possible defenses.

If the accused person raises a defense, he/she has to adduce evidence to convince the court of the fact that his/her defense is worthy to be considered. It is different from the burden of proof to be borne by the prosecution to prove the charge. It is sufficient to leave the judge in reasonable doubt. Such a burden is called the evidential burden. It is not the burden of proof because there is no onus on the defendant to satisfy the court or jury.

There are two recognized standards of proof-

Beyond reasonable doubt and
The balance of probabilities. The beyond reasonable doubt is the standard required for the prosecution in criminal cases. The principle of balance of probabilities applies in civil cases.

In criminal cases, the law imposes a higher standard on the prosecution with respect to the issue of guilt. Here, the invariable rule is that the prosecution must prove the guilt of the defendant beyond reasonable doubt. To convict the defendant, the court must be sure that the defendant is guilty. If there arises any doubt, its benefit goes to the accused. In civil cases, the standard of proof is the preponderance of probabilities. It means simply that the party bearing the burden of proof must prove that his case is more likely than not to be true.

5. Principle of estoppel

Estoppel, generally, is the principle that stops a person from asserting something contrary to his/her previous action or statement. Estoppel shuts the mouth of a person and stops him/her from taking benefit by changing the position. Estoppel is one of the principles of evidence law that is related to the exclusion of certain evidence.

Estoppel is a procedure of proof in which a party of a case is prevented from the fact from which he or she had taken benefit. People act or behave in particular ways or say certain things so that other people may act believing such statements or depending on such behavior. The person making such a statement or assertion may have taken advantage of it.

If the person is allowed to make a contrary assertion subsequently, he or she may take benefit again, causing loss to the person who acted depending on such assertion. The principle of estoppel stops such a person from taking benefit from contradicting the previous assertion. However, estoppel does not apply in point of law. For example, 'A', a minor, had entered into a contract with 'B'. Later, he pleads that he was a minor at the time of entering into contract. In such a situation, the principle of estoppel does not apply to 'A' because the contract with Minor is void as per the law.

The fundamental principles of evidence law ensure the fair and rational adjudication of disputes. These principles include confining evidence to the matter in issue, the best evidence rule, the rule against hearsay, the burden of proof, and estoppel. They guide the court in assessing relevant, reliable, and admissible evidence while preventing manipulation or unnecessary delays. The burden of proof principle ensures that those asserting claims must provide supporting evidence, maintaining fairness in legal proceedings. These principles, deeply rooted in both ancient and modern legal traditions, continue to shape judicial processes and uphold the integrity of the justice system.