LAW OF EVIDENCE ASSIGNMENT

TOPIC:
NATURE,SCOPE AND TYPES OF EVIDENCE

Submitted To:
Dr. Omprabha Mam

Submitted By:
Rahul
865
LL.B. 4th sem

INTRODUCTION
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 be proved or disproved.

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 p0int in issue.

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.

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 who is able to adduce
more evidence compare to his opponent.

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:
1. 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.

2. In criminal case:

Law of evidence playing most important role in criminal

case as well as civil case. If anyone frames charge-sheet against
anyone, the framer shall produce evidence.If someone
takes plea of innocent then he/she shall produce evidence of
innocence.
Quasi Judicial Sector:

Administrator has jurisdiction to see certain case. As per the

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.

Types of Evidence
Evidence is any fact presented before the court to prove 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 as 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 such 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.
Ad by Valueimpression

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:

Anything 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 clothes 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 known as “positive evidence”. Evidence given by
direct witness/eye witness is called “Direct 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
set fire to the house. Mr.Karki deposes that he
saw Mr.Thapa setting fire. Mr.Karki is eye witness.
4. Documentary evidence:

Anything 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.

Eg.An inscription on a 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, 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 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 betake 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.

Fact in Issue
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 categorized into

(a) Physical Facts and

(b) Psychological
Facts. Ad by
Valueimpression

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.
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 ,disabilty 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”.

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 admissible.
Corroborative Fact:

Facts, which are given in support of some other facts, are called
corroborative facts.

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.

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.

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 is relevant fact.
The does not give any more description as to relevant fact.
Indian Evidence Act 1872 has given elaborate 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.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.

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 fact 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.