Procedural Law · Chapter 4
Study notes aligned to the official NEB syllabus.
A court is not a witness to the events it must judge. It was not present when the contract was signed. It was not present when the land was occupied. It was not present when the blow was struck. So it cannot know the facts on its own. It has to be persuaded of them. The material that proves or disproves the facts of a case before a court is called evidence (प्रमाण). Evidence law (प्रमाण कानुन) is the branch of procedural law that governs evidence. It lays down what may be given in evidence. It lays down how evidence is produced and tested. It lays down who must prove what. It lays down how much proof is needed. In Nepal the main law on this subject is the Evidence Act 2031 (1974). It is read with the two procedure codes.
Evidence falls into broad kinds. The first grouping is by form. There is oral evidence, which is the statements of witnesses made in court. There is documentary evidence, which is writings and records. There is real or physical evidence (दसी प्रमाण), which is material objects produced for the court to inspect.
The second grouping is by relation to the fact in issue. There is direct evidence, which proves a fact straight away. There is circumstantial or indirect evidence, which proves surrounding facts. From those surrounding facts the main fact is inferred. Here is an example. Suppose A is prosecuted for stabbing B. A passer-by saw A stab B. That testimony is direct evidence. A's fingerprints on the knife are circumstantial. A's motive is circumstantial. A's flight from the scene is circumstantial.
A basic rule of the subject is the burden of proof. The party who asserts a fact must prove it. In a criminal case the prosecution must prove guilt. The accused is presumed innocent until proven guilty. The Constitution of Nepal 2015 guarantees this presumption.
When evidence is documentary, the law divides it into two. These are primary and secondary evidence. Primary evidence is the original document itself, produced before the court. It is the best evidence of its contents. It is what the law normally requires. Secondary evidence is a substitute. A certified copy is one example. A photocopy is another. An oral account of the contents of a document is another. The guiding rule is the best-evidence rule. A party should produce the original. Secondary evidence of a document's contents is allowed only in recognised exceptional cases.
Here is an example. Suppose A sues B on a loan recorded in a written deed (तमसुक). The court will expect A to file the original deed. The original shows the true terms. It shows the genuine signatures. It shows any alterations on its face. Suppose A produces only a photocopy. Then B could argue that the figures or the date were changed. Secondary evidence of such a deed is let in only in special cases. One case is where the original has been genuinely lost or destroyed. Another is where the opposing party holds the original and refuses to produce it. Another is where the document is a public record and the law allows a certified copy. This rule guards against error and fabrication. It prefers the most reliable source. It is one reason the law treats a registered original deed as stronger proof than any copy of it.
Evidence must be lawfully collected before it can be used. In civil cases the parties produce their own documents and witnesses. The court may also help. It may call for documents. It may order an inspection. It may appoint an expert to examine a disputed matter such as a boundary or a signature. In criminal cases collection is largely the work of the investigation (तहकिकात). The National Criminal Procedure Code 2074 governs this. The police gather evidence in several ways. They record the statements of the complainant and witnesses. They seize and seal material objects (दसी). They prepare a site-inspection report (muchulka). They obtain expert and forensic opinion.
Here is an example. Suppose a burglary is reported by a First Information Report (जाहेरी दरखास्त). The police visit the house. They photograph and record the broken lock. They recover a tool left behind. They seal it as an exhibit in front of witnesses. They note the account of the neighbours. They send a recovered bloodstain for forensic testing. Each of these steps is collection of evidence.
Collection must respect legal safeguards. Suppose evidence is gathered by clearly unlawful means. Suppose a confession is extracted by force. Such evidence is viewed with suspicion. It may be given little or no weight. The Constitution of Nepal 2015 protects a person against being compelled to confess. The fairness of the process affects how reliable and admissible the collected evidence is.
A witness (साक्षी) gives oral evidence on oath. The witness speaks about facts within their own knowledge. The testing of that evidence is the examination of witnesses (साक्षी बकपत्र). It happens in three stages. The first stage is examination-in-chief. Here the party who called the witness asks questions to bring out the witness's account. The second stage is cross-examination. Here the opposing party questions the witness. The aim is to test truth, accuracy and credibility. The aim is also to bring out facts in its own favour. Cross-examination is seen as the great engine for finding the truth. The third stage is re-examination. Here the party who first called the witness may clear up matters that arose in cross-examination.
Here is an example. In a disputed-boundary suit the plaintiff calls a neighbour. The neighbour says the fence has stood on the present line for twenty years. In cross-examination the defendant's counsel tests this. Counsel asks how the witness is sure of the year. Counsel asks whether they are related to the plaintiff. Counsel asks whether they were ever away from the village. This tests the memory and the bias of the witness.
In examining a witness the court and counsel must watch several things. They must see that the witness is competent and understands the oath. They must see that questions are relevant and not misleading. They must see that leading questions are not put in examination-in-chief. A leading question is one that suggests the answer. They must see that the deposition is recorded accurately. A closely related rule concerns hearsay evidence. Hearsay is what a witness heard from someone else rather than perceived themselves. It is generally no evidence. The reason is that it cannot be tested by cross-examination.