EVIDENCE WHEN

ADMISSIBLE AND
INADMISSIBLE
Unit 4
ADMISSIBLE EVIDENCE
 Admissible Evidence is any document, testimony, or
tangible evidence used in a court.
 In criminal law, evidence is used to prove a
defendant’s guilt beyond a reasonable doubt.
 In civil law, an element of a case is weighed by the
standard of preponderance of the evidence.
 Before evidence can even be used, it must be
considered “admissible”.
 Whether evidence is admissible or not depends on
several different factors that the court must analyze.
 Some admissible evidences are described as
following.
1. Admission and Confession:
 An admission is intended strong evidence against a
person but a person sought to be found by an
admission may prove that he made it under mistake
on similar circumstances. He may even contradict it if
he can.
 Stephen in his Digest of the Law of Evidence defines
confession as an admission made at any time by a
person charged with a crime stating or suggesting the
inference that he committed crime.
 A confession before trial, if given without any
inducement in favor or threat of punishment, is
evidence against the person charged even though may
be in the custody.
Difference between Admission and Confession:
By the term confession, we mean a legal
statement made by the accused in which he/she
concedes the guilt of the offence. In contrast,
admission means acceptance of truth or fact in
issue or a material fact in a civil or criminal
proceedings.
The confession is made in criminal proceedings
only. On the other extreme, admission is related
to both civil and criminal proceedings.
The confession made can be retracted easily, but
once the admission is made, it cannot be
retracted.
The confession is made by the person under
indictment, i.e; accused. Unlike admission,
wherein the admission is made by any person,
who can be the agent or even a stranger.
In case of confession, the conviction is based
on the statement itself, however, in the case
of admission, additional evidence is required
to support the conviction.
Every confession is an admission, but every
admission is not the confession.
There are two types of Confession:
a. Judicial Confession
 A judicial Confession is that which is made before a
magistrate or in Court in due course of judicial
proceedings.
b. Extra-Judicial Confession
 An Extra-Judicial Confession is that which is made
elsewhere than before a magistrate or in a court. It
is admissible under Section 21 of Evidence Act and
is proved by the witnesses who heard the speaker’s
words constituting the confession.
- Section 9(2) of the Evidence Act
- Section 123 of the National Criminal Procedure
(Code) Act 2074
2. Statement on the spot:
Statement made before or after the incident, that
is called statement on the spot.
It is also known as ‘Res Gestae’. The ‘Res Gestae’
doctrine is one particular method through which
hearsay evidence can be utilized in a criminal case.
The phrase itself literally translates to ‘things done’.
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.
Therefore, the account is admissible in court while
also being hearsay.
 Section-10 of the Evidence Act has provided some
conditions pursuant to it:
(1) If any of the following persons express any fact
immediately or immediate before or after, regarding any
act, incident or condition/situation such fact may be
taken as evidence:
a. The person who had done that act or who had directly
seen or known the act, incident or condition/situation,
b. The victim of the act, incident or condition/ situation.
(2) If any person expresses any fact clearly knowing
his/her physical or mental condition till the continuation
to such condition the fact so expressed may be taken as
evidence.
 See also Section-37(2), 10,11,12 of the Act
Circumstances while admitting statement
on the spot:
a. Proximity of time and space.
b. Continuity of Action
c. Cause and Effect
d. Statement showing bodily or mental
condition
3. Dying Declaration:
If any statement made by a person who is in
the deathbed or condition of dying but is in
the conscious mind who reveals the facts
about his death is called the dying declaration.
According to Section 11 of Evidence Act:
-The fact expressed by a person, who is dead
but who expressed it in the dying stage when
he/she was in a normal condition regarding to
the cause of his or her death, may be taken as
evidence.
Why the dying declaration is regarded as admissible evidence?
 In this regard in the court of England in the case of R.V.
Woodcock said in this way: “When every motive to
falsehood is silenced and mind is induced by the most
powerful consideration to speak the truth. Exception to the
hearsay rule: a statement of fact made by a dying victim
relating to the cause and circumstances of a homicide. In
the legal system of England in relation of dying declaration
is strict. The general principle on which this species of
evidence is admitted is, that they are declarations made in
extremity, when the party is at the point of death, and when
every hope of this world of this world is gone; when every
motive to falsehood is silenced, and the mind is induced by
the most powerful considerations to speak the truth; the
situation so solemn and so awful, is considered by the law
as creating an obligation equal to that which is imposed by a
positive oath administered in a court of justice.”
Condition for admissibility of dying declaration:
1. Corroboration- There is neither any rule of law
nor of prudence that a dying declaration requires
to be corroborated by other evidence.
2. Fit state of mind- At the time of giving the
statement the deceased must be in a fit state of
mind, and to satisfy this the court depends
upon medical opinion.
3. Death of declarant: When a dying declaration is
made by a person under expectation of death,
who later survives, the statement would not be
admitted and the statement would be treated as
a statement recorded during an investigation
4. Statement of Person in the Special Condition:
 Until the direct evidence is available the court shall
not hold the indirect evidence.
 According to Section 12 of the Evidence Act:
- The following facts expressed by the person who is
dead, whose whereabouts could not be located or who
is incompetent to be a witness or who has privilege
not to be a witness pursuant to this Act or for whom
the party to the case has proved that he/she cannot
appear before the court due to the conspiracy of the
opposing party or who is in such a position that the
court cannot issue a summon or a person as to whom
the court finds it inappropriate to call him/her due to
the process being expensive or time consuming:
a. Any fact expressed against the right, interest or
benefit of the person him/herself
b. The fact expressed in a written form which could
lead towards legal action or criminal
charge(acquisition) against him/her.
c. Any fact expressed in a written form, before
filing of the case, regarding any public interest
or custom specially known to him/her
d. Any fact expressed in a written form, before
filing the case, regarding any relationship
specially known to him/her
5. Statement of Witness in other cases:
The facts stated by the witness in a case before the
court may be taken as evidence in any other case.
According to Section-17 of Evidence Act:
The facts stated by the witness in a case before the
court may be taken as evidence in any other case in
the following conditions:
a. In case, the witness has been dead or has become
incompetent to be a witness pursuant to this Act, or
b. In case, the witness has privilege not to provide
evidence on that matter(fact) pursuant to this Act, or
c. In case, the party to a case proves that the
witness can not be produced before the court
due to any conspiracy of the opposite party,
or
d. In a case Notice can not it be issued
against him/her, or
e. In case, it becomes inappropriate in the
opinion of the court to produce him/her due
to it being time consuming or expensive.
But this Section has been taken as the
exception of the general rule that all the
evidence should be direct.
In this condition, the Nepalese Evidence
Act and the Indian Evidence Act differ in
the question of the provisions made for
the fundamental evidence. Under the
Indian Evidence Act, the statement by the
witness in other case will be taken as an
evidence unless the subject and the
parties if the litigation is same but under
the Nepalese Evidence Act such provision
is unavailable, if they are relevant then
only evidence can be taken.
Where there is no witness, but in some of
the cases before any court where any of
the witness has made statement, such
matters in only certain circumstances will
be taken as the evidence in other cases.
Leading and other illegal questions are not
allowed to go in
Evidence given in a case by witness in a
judicial proceeding of the court, is relevant
for the other cases.
6. Facts Recorded in the Public Documents:
 Any document, which is prepared by the public officer
in execution of his/her official duty is regarded as
public document
 Under Section 13 of our Evidence Act, there are such
facts whose truth cannot be questioned and cannot be
overlooked.
 The matters mentioned under the public documents
will fall under this category and they can be admitted
as an evidence.
 For example: Court records; Birth records; death
records; marriage records; licensing records;
Statistical data; meeting minutes; Voting records;
Correspondence; Budgets; Government financial
records; manuals; directives, orders, regulations,
policies of Government; historical records; etc.
According to Section 13 of Evidence Act:
1. Facts mentioned in any public document, by the
public officer in the course discharging of a public
duty required for his/her position and by any
other person in performance of a duty prescribed
by the law, may be taken as evidence.
2. Facts mentioned in the documents, relating to
any Maps, Charts or Data(facts and figures)
generally offered for public sale, which are
published by the government of Nepal or by a
person or public institution authorized by the
Government of Nepal, may be taken as evidence.
7. Facts Recorded in Books of Accounts:
According to Section 14 of our Evidence Act
- Any fact regularly posted or mentioned in the
Books of Account, Private Entries(Bahi)
Books or other Records(Shresta) in the
course of any act, process or profession or
any letter written, receipt, series of letters
(Chalani) or any other particulars may be
taken as evidence.
Some books of accounts are: journal; ledger;
cash receipt journal; sales journal; purchase
journal; etc.
We must see Section 34 of Indian Evidence Act
1872:
1. Entries in books of account, regularly kept in the
course of business are relevant whenever they
refer to a matter into which the Court has to
inquire
2. But such statements shall not alone be sufficient
evidence to charge any person with liability
For example; if A sues for Rs.1000, and shows
entries in his account books showing B to be
indebted to him to this amount. The entries are
relevant, but are not sufficient without other
evidence to prove the debt.
8. Facts Published in Books of Article:
 According to Section 15 of The Evidence Act:
1. Statement of facts on the law and decision contained
in the Books published by the Government of Foreign
State or by a person or an organization authorized by
such government regarding the law or the decision of
the court of that state, may be taken as evidence.
2. Facts mentioned in the published Book or Article
written by a person renowned as a scholar in that
field(subject) may be taken as evidence.
3. The matters written or published in any books or
articles can be held as the exception of the hearsay
evidence. Reason is that thought expressed in any
book or article or journals, to ascertain them, the
concerned authors can be compelled to present in the
court.
 The court will keep the information about the legal
system of its own country. It has relationship with
Section 6(f) provision…
 Subsection(2) has relationship with Section 23(1) in
the point that if the court has to reach to a
conclusion of any opinion, regarding law of a foreign
country, science, art, signature or finger impression,
opinion of the experts may be taken.
 Any books written by experts which are offered for
public sale may form a source of information in
court proceedings, anything stated in such books
may be given in evidence without calling the author
of witness.
 As for example; the Medical Jurisprudence written
by Dr. Modi.
9. Matters recorded in regular Statistics, Lists,
Statement, etc:
According to Section 16 of the Evidence Act:
Facts mentioned in the data (facts and
figures), detail out index, particulars or
articles, regularly published for the
consumption of the specific professions may
be taken as evidence.
Any statement which is designed to provide
information to particular profession and
which is offered for public sale may be given
for evidence in any court proceedings
For example; the article published in the
journal of the Medical Association can be
taken as the proof.
Likewise, the Journal of Association of
Statisticians which it publishes for its welfare
or utility can be taken as an evidence.
But if any of the journals published in time
now and then or very less often or with less
frequency cannot be admitted as an
evidence in the court.
10. Investigation Documents:
 It is also called the documents prepared in the time of
investigation.
 This condition may come especially in the criminal case
where the state will be party
 According to Section 18 of Evidence Act:
The fact expressed by a person in the document prepared in
the course of inquiry or examination of any act, incident or
situation/condition pursuant to the prevailing law, may be
taken as evidence, in case he/she appears before the court
and records his/her statement as a witness.
Provided that;
a. In case, there is no issue between the parties to the case
on the facts mentioned by the expert in the Post-mortem
Report or the fact so mentioned is not inconsistent with the
evidence if any, such fact may be taken, as evidence even if
the expert does not appear before the court.
b. An opinion expressed by a person, in the deed
of spot investigation sarjameen done by the
Investigating Officer in the course of
investigation, may be taken as evidence for the
purpose of remand even such person does not
appeal before the court as witness
This can be held as the exception of the
hearsay evidence
The statement made before the police cannot
be admitted as evidence because in criminal
case the police will be itself a party(plaintiff).
11. Certificate, Report, Other Document and Any
Matter or Material Evidence(Dasi) Attested by Witness:
 According to Section 19 of Evidence Act:
-A Note or Certificate, issued by a person having the
duty of issuing such Note or Certificate, may be taken
as evidence.
 According to Section 20- Any observation (Tippani) or
Report, written or prepared in the course of
discharging of duty, by a person who has the legal
duty to prepare the observation (Tippani) or Report
and submit it to a specific place or an office regarding
any act, incident or situation/condition pursuant to
the prevailing Nepal Law, may be taken as evidence.
Provided that, the observation(Tippani) or Report
should have been duly registered in the specific place
or office.
According to Section 21:
- In addition to the document mentioned
from Section 9 to 20, any other document
may be taken as evidence to prove that
such document exists.
According to Section 22:
- Any material or object related to the case
and identified by the witness before the
court may be taken as evidence.
 There is compulsion of complying with the prescribed
format by law and prescribed procedure of law.
 There is a principle that in such matter, the
examining the evidence will be the waste of time.
 For example; if any controversy arises whether
anyone is graduate or not, the certificate of
completing the graduation from any University will be
the proof.
 Likewise, the receipt given by the Land Reform Office
of clearing the land revenue will be the proof.
 Commentary or report written by a person on his/her
duty regarding information on any event, action,
incident should be lawfully registered.
12. Experts Opinion(Personal Opinion):
 The term “Experts” means a person who has
acquired special knowledge through special study,
training or experience in any field(subject).
 The “Special Person” may be specially known or
well informed.
 The opinion of the expert and the opinion of the
special person has got different importance. And
also there is fundamental difference between
“Expert” and “Special person”.
 To be admissible, the special person must appear
in the court for his statement otherwise, his
opinion cannot be held as an evidence.
The reason behind holding the opinion as
admitted evidence there are following
reasons:
1. The court cannot be the expert of the each
subject
2. The specialist will be expert in that subject
3. The opinion of the expert will help in
deciding the case.
Opinion is the expression of thought on any
subject. Opinion may be:
a. As a medium
b. As an element.
According to Section 23 of Evidence Act:
1. If the court has to reach to a conclusion
of any opinion, regarding law of a foreign
country, science, art, signature or finger
impression, opinion of the expert may be
taken as evidence.
a) Foreign Law
b) Science and Art
c) Signature or Hand-writing
d) Finger impression
2. If the court has to reach to a conclusion of the
signature of a person, the opinion of a person
who was in a position to see the signature of
such person frequently and to identify it , may
be taken as evidence.
-For an example: husband, wife, joint partner,
personal assistant.
3. If the court has to reach to a conclusion of the
fact regarding any religious, ethnic or public
interest or custom, the opinion of a person who
is in a position to have special knowledge
regarding the interest or custom may be taken
as evidence.
4. If the court has to reach to a conclusion of the fact
regarding whether there is any bond or relation of a
person with another person or not, the opinion of a
person who has special information regarding the
bond or relation, may be taken as evidence.
5. If the court has to reach to a conclusion about the
meaning of the specific word or words(phrase) which
is in use in some specific places, opinion of the person
who is in a position to have special knowledge of the
same, may be taken as evidence.
6. In case, opinion of a person is taken as evidence
pursuant to this Section, the facts which support or
refute the opinion or the grounds of the opinion may
also be taken as evidence.
7. Any opinion expressed by a person may
be taken as evidence only if he/she appears
before the court in person as a witness.
-Provided that, to make any opinion or the
ground of such opinion expressed in a book
or article, of the expert, as an evidence it
shall not be necessary to be produced by
the writer of the book or article before the
court in person.
13. Statement of Witness:
Statement is a communication or declaration in
speech or writing, setting forth facts, particulars,
etc; a definite or clear expression of something in
speech or writing.
Witness is one who has seen or known, one who
gives evidence before a tribunal and one who
testify unless the court considers .
According to Bentham “Witnesses are the eyes of
Justice”.
-Lets categorize the witness in three forms:
All witnesses are not competent
Some witnesses are privileged against statement
Witness shall have to answer.
According to Section 38 and 39 of Evidence Act:
- Person Competent to be a witness:
All persons including the accomplice may be
competent to be a witness unless the court
considers that they are prevented from
understanding the questions put to the, or form
giving rational answers to those questions, by
tender years, extreme old age, physical or mental
disease or any other cause of the same kind.
- Dumb Witness: a witness who is unable to
speak may give his/her evidence in any other
manner in which he/she can make it intelligible as
by writing or by signs.
Privilege of witness against statement which is
categorized into two:
(a) Shall not be compelled to disclose
(b) Not to disclose
Section 40: Parents etc. of the party shall not be
compelled to be a witness
Section 41: Communication during marriage
shall not be compelled to disclose
Section 42: A judge shall not be compelled to
disclose any act done in that capacity.
Section 43: Not to disclose the fact mentioned in
the unpublished government document laying in
the Government Office
Section 44: Public Official shall not be compelled
to disclose any information received in that
capacity
Section 44A: Police personnel shall not be
compelled to disclose the source of information
of the occurrence of a crime
Section 45: A Law Practitioner not to disclose
any information given by his/her client
Section 46: A person shall not be compelled to
disclose any communication between him/herself
and his/her professional legal advisor
Section 47: Witness shall have to answer
Section 48: Production and Examination of
witness
Section 49: Procedure relating to the
examination of the witness
Section 50: Examination-in-chief and cross-
examination
Section 51: Court to forbid to ask
unreasonable question with the witness
Section 52: Examination-in-chief and cross-
examination of the expert
Section 53: Court may ask necessary question
with the witness
INADMISSIBLE EVIDENCE
1. Confession under Threat, Inducement etc.
According to Section 9(1): Any fact expressed
by the party to a case may be taken as
evidence against him/her.
The court shall only take it as an evidence if
the confession made in the free and conscious
mind. If made so in the free will, then only
his/her statement can be regarded as a
genuine one.
If it is proved that the confession is made
under threat, pressure, inducement, then the
court will not admit it as an evidence.
2. Statement Expressed for the Purpose of Compromise:
 According to Section 9(2): A fact accepted by a person
for the purpose of reaching to a compromise, by giving
up any claim as a whole or in part or agreeing to pay
any amount or to provide any service to any other
person, may not be taken as an evidence against that
person.
 In civil cases, the court should approve, if the parties
want to come in the compromise voluntary because the
time, money and other resources will be saved.
 The fact accepted by any party for the purpose of
reaching to a compromise by giving up any claim, may
not be taken as an evidence against that person.
3. Statement not recorded as Witness at Court:
According to Section 8: Facts to be taken as
evidence under this chapter and other facts
stated by the witness before the court may be
taken as evidence in the course of examining
evidence pursuant to Section 3(facts in which
evidence may be examined/relevant facts)
Generally, it is presumed that the statement
made by the witness in the court will be true
and the statement made by the witness
outside the court may not be true and it can
be questioned on the basis of following
factors:
a. The witness will not have administered the
oath.
b. If made false statement, no fear of being
punished
c. By any of the threat or fear, the false
statement might have made
d. By means of any of inducement and
assurance, the false statement might have
made
e. Other parties of the litigation will be absent
f. No opportunity of cross examination.
4. Character:
According to Section 24(1): Whether the
character of the parties to the case is good or
bad, shall not be taken as evidence(provided
that, if the court has to decide on the character
of a party to the case, fact relating to the
character may be taken as evidence.
The evidence of character relates (1) to
character of a witness, or (2) to character of
parties.
Wigmore stated that “the business of the court
is to try the case and not the man, a very bad
man may have a very righteous cause”.
5. Privileges:
 According to Section 24(2): in case, where a
person is not permitted to express any fact
pursuant to Section 41, 43 and 45 and even if that
person expresses that fact, such fact may not be
taken as evidence
6. Documents without the consent of the court:
 According to Section 24(3): if the court issues order
to produce a document to a party to the case and
that party does not submit the same accordingly
that evidence shall not be permitted to produce in
that case without the permission of the other party
or the court.(Also see Section 7b)
7. Others: Section 24(4) and Section 54.