Prologue (Evidence Act 2031)
Evidence Act 2031 was provisioned to amend and consolidate the Nepalese Law of Evidence. It consists of Nine Chapters and 56 Sections. It was enacted by King Birendra Bikram Shah on the recommendation of the National Panchayat.
Evidence Act has incorporated the basic elements of Admissible Evidence and the types of Evidence that are admissible in Court, making it the Substantial Evidence Law of Nepal.
It has also accounted for Permissible and Impermissible Evidence. Witness Examination, Document Evidence, Oral Evidence, Estoppel, and Burden of Proof are other elements and chapters included in the Act.
Attributes and Features
Admissible Evidence
According to Chapter 2 of the Evidence Act, the court is authorized to examine evidence that is relevant to the case. Such Relevant Facts must have central concerns with the case at hand.
Admission by Parties
If a fact is confessed by one party and acknowledged in writing by the opposing party, additional evidence may not be necessary.
Judicial Notice
Some facts such as the Geography of Nepal, and our laws are well-established and widely known. These are considered matters of common knowledge and don’t necessitate proof.
Presumption
Evidence Act has permitted the court to assume certain facts as true unless they are disproven.
Documents
The Courts may rely on documents that are published, prepared, or attested by government offices and Officials authorized by the Law of Nepal.
Foreign Laws and Judicial Decisions published in books and journals endorsed by a Foreign Government are also presumed to be accurate.
Permissible and Impermissible Evidence
Chapter 3 of the Evidence Act has provisioned for Permissible and Impermissible Evidence in the context of Nepali Evidence Law.
- Facts Expressed by Parties: Any facts stated by parties to a case can be considered as evidence against them.
- Immediate Expression of Facts: If a person immediately expresses facts related to an act, incident, or condition, either before or after it occurs, these expressions can be considered as evidence.
- Facts Expressed by a Person Before Their Death: Statements made by individuals in their final moments, while in a sound mental state, regarding the cause of their death, can be used as evidence.
- Special Facts Expressed in Specific Situations: Special provisions are made for facts expressed by deceased persons, who cannot be located, are incompetent as witnesses, have the privilege not to testify, or cannot appear in court due to conspiracy or impracticality.
- Facts in Public Documents: Facts mentioned in public documents created by public officers in the course of their duties or by others as required by law are accepted as evidence.
- Facts in Books of Account and Records: Regularly recorded facts in account books, private entries, or other records made during official or professional activities can be considered as evidence.
- Expert Opinion: For Foreign Law, Science, Arts, etc, Expert Opinions can be admitted as evidence.
Burden of Proof
Section 25 of Evidence Act 2031 states that the burden of Proving that the accused has committed the offense lies on the plaintiff. The plaintiff in Criminal Cases is the Government. For Civil Cases, the burden of proving the claim lies on the plaintiff.
However, the Burden of Proof may shift on the defendant in Criminal Cases in the following scenario:
- If the defendant makes a counterclaim
- If the defendant must demonstrate that something that must be paid or returned has already been paid or returned.
Other
The Burden of Proving whether a person is alive or dead is established through the period of 12 years. If no individuals close to the individual have been communicated through, the burden of proving that the person is alive sifts to the party affirming it.
Estoppel
Chapter 5 Section 34 of the Evidence Act 2031 has incorporated the Principle of Estoppel in Nepal.
If through the action, word, or conduct of one individual, another individual believes it to be true and acts based on such beliefs then, the Individual who expressed such belief cannot deny its truthfulness.
Documentary Evidence
To prove a fact mentioned in the document, the document itself must be produced. If the fact can be proved in alternative means such as a picture, then, it isn’t mandatory to bring the document into Court.
For Signature, if confusion arises, the court may ask that person t write or sign on a separate piece of Paper and compare that signature or thumb impression. Experts can also be consulted.
Oral Evidence
Facts can also be proven through Oral Evidence except in circumstances required by Law. The Oral Evidence must be directly coming from the person who directly sensed the fact in Question. Hearsay Evidence isn’t regarded as conclusive Evidence.
Witness Examination
Individuals involved in the Crime are considered to be competent as witnesses except in conditions where they are incapable of understanding the questions asked.
For Dumb Witnesses, they make present their evidence in alternative ways that make it intelligible.
Section 40 of the Evidence Act has provided that Family Members cannot be forced to act as witnesses against their relatives.
Individuals who are married cannot be forced to disclose any communication made between them during their marriage.
Lawyers and Legal Professionals aren’t allowed to disclose communication made to them in the course of employment as lawyers except for the written consent of their client.
Procedure for Witness Examination
Section 48-52 of the Act has provisions for Witness Examination. It has stated the conditions for Examination, Cross Examination, and Re-examination of Witness.
It also includes taking an oath to speak the truth, conducting an examination where all the parties are present, and allowing Witness Privacy from another Witness.
Prologue
The Evidence Act 2031 was designed to regulate the admissibility and presentation of Evidence in Legal Proceedings of Nepal. It comprises Nine Chapters and 56 Sections and covers the fundamentals of Evidence, Witness Examination, and Related Matters.
Admission of Facts, Judicial Notice, and Presumption of Certain Facts have been listed as the basic principles of Evidence Law where they are considered to be ipso facto true except if proven otherwise.
The Act has complemented the Judicial Acts of Nepal such as the Government Cases Act 2049, Supreme Court Act 2013, Interpretation of Laws Act 2010, etc.
According to the Act, the burden of Proof in Criminal Cases lies in the Government, and in Civil Cases rests on the Plaintiff.
Cite
Pokhrel, Aupson. “Evidence Act 2031 – the #1 Encyclopedia of Nepali History.” Encyclopedia of Nepali History, 14 Oct. 2023, itihasaa.com/acts/evidence-act-2031.
