FACTS AND

PRINCIPLES
Unit 3
FACTS
Facts means and includes:
1. Anything state of things, or relation of things,
capable of being perceived by the senses.
Illustrations:
a) That a man heard or saw something, is a fact
b) That a man said certain words, is a fact
2. Any mental condition of which any person is
conscious
Illustrations:
c) A person has an intention to commit murder
d) That a man has a certain reputation, is a fact.
 Fact is something which is true and real, especially
something which has been proved by evidence in
court.
 Mostly instead of fact, ‘matter’ has been used.
 According to Bentham: Facts are things that can
be experienced by experience and the mental
condition that can give realization to man is
called fact.
 According to Stephen: Fact includes the fact that
any mental condition of which any person is
consciously exists.
He has classified fact into two: Physical fact and
psychological fact.
In the context of the evidence law, fact or matter
is meant to anything is seen or felt by any person
from his/her external organs or any object,
materials situation mentally that is felt and
relationships of such matters will fall under fact.
Types of Facts:
1. External and Internal Fact or Physical or psychological
Fact: The fact received by the five organs are External
or Physical facts whereas the facts received by mental
condition are Internal or psychological facts
2. Positive and Negative Fact: The facts which depicts or
describes the availability of the fact is Positive fact
whereas if there is no existence of fact that is Negative
Fact.
3. Principal and Evidentiary Fact: Principal fact is also
called the fact in issue or Factum Probandum, or which
has direct relationship with the fact in issue. They are
seen as the principal fact. Evidentiary fact are the
proved fact or fact not to be proved and called relevant
fact or Factum Probans, or these will not have direct
relationship with the debated matter or fact in issue or
they will contribute to assist establish the fact in issue.
Importance of Facts:
 Facts are the elements required in legal
pleadings
 It demonstrates the cause of action
 It is a potential ground of any debate
 Facts may be understood as information that
makes a true sentence true
 Facts are taken as the necessary safeguard
against contingencies(such as Res Judicata)
 Facts form the basis of the claim for the parties
FACT IN ISSUE
 Generally, fact in issue are those facts, which are
under consideration of the court and in which the
court has to give its adjudication.
 Fact in issue are those issues, which are alleged or
claimed by one party and denied by other party in
the pleading in a civil case or alleged by the
prosecution and denied by the accused in a
criminal case.
 Evidence Act,2031 has not defined the fact in
issue. In Section-3, it is just said that: The court
may examine evidence on the fact in issue which is
to be decided by it.
 In a civil case facts in issue are determined by the
process of framing issues whereas in criminal case,
the charge constitutes includes the fact in issue.
 According to Wikins and Cross: Facts in issue are
all those facts which the plaintiff in a civil action
or the prosecutor in criminal proceedings must be
proved in order to succeed, together with any
further facts that the defendant or accused must
be proved in order to establish a defense.
 According to Phipson: Facts in issue are the facts
which plaintiff or prosecutor must prove in order
to win, or which defendant must prove in order to
succeed in same defense
 According to Avatar Singh: There are two in fact in
issue. The first is obvious and simple that the fact
should be in dispute between the two parties. The
second requirement is that the fact should touch
the question of right and liability.
Example:
‘A’ is accused of the murder of ‘B’.
At his trial the following facts may be in issue-
-That A caused B’s death;
- That A intended to cause B’s death;
- That A had received grave and sudden provocation
from B;
- That A at the time of doing the act which caused B’s
death, was, by reason of unsoundness of mind,
incapable of knowing its nature.
Now, lets illustrate this example.
 That A caused B’s death.(It refers to the question,
whether A has caused the death of B. If answer is
“No”, then A is discharged/acquitted. If the answer
is “Yes”, the following question will arise:
 That A is intended to cause B’s death or, not. If
the intention(Mens Rea/Mental Element) is
present, it is murder or culpable homicide and A
is awarded serious punishment. Otherwise, (if
intention/Mens Rea is absent) it amounts to an
accident, which is a defense under legal
provision(National Criminal Code, 2074, Section
182). If the accident is by negligence, the
punishment is up to 3 years imprisonment or
fine or both.
 That A has received grave and sudden
provocation from B( It refer to the question,
whether B is instrumental/responsible for such a
grave and sudden provocation by A, accusing to
cause B’s death.
 That at the time of committing the act,
whether A was incapable of knowing the
nature and extent of the consequences(of his
act) by reason of unsoundness or other (Even
if A caused B’s death intentionally, A may
plead the defense, on the ground that he
was incapable of knowing the nature and the
extent of consequences of the act he was
doing, due to insanity.
 In short, the question, which give rise to a
right or liability and that which is to be
proved are called fact in issue.
 RELEVANT FACTS
 Relevant facts are said to be such facts which are
directly or indirectly related with the principal fact
and fact in issue, the facts which support to prove or
disprove the facts to decide by the court and or fact
in issue or principal fact.
 Section-3 of Evidence Act, 2031 has defined it as a
fact which helps to prove or disprove the fact in issue
of the case to be decided.
 The theory of relevancy is based on one of the Roman
Maxim “jure non-remota, casua and proxima
spectator”. It means that it is remote but the
appropriate cause that counts. It means only relevant
facts are count not irrelevant facts. Only by being
inspired by this principle the facts are admitted, only
which can play a vital role in the lawsuit and this fact
is called Evidentiary Fact.
 According to Taylor: All facts are relevant, which
are capable of affording any reasonable
presumption of the fact in issue or the principle
matter in all disputes.
 According to Cross: Facts in issue often have to be
inferred from other facts. These other facts are
described as facts relevant to the issue or
evidentiary facts.
 According to Phipson: A fact which is not actually in
issue but is in this relationship with a fact in issue is
relevant fact.
The word ‘relevant’ has two meanings, in one sense,
it means ‘connected’ and another sense ‘admissible’
or ‘acceptable’. One fact is said to be relevant to
another when the one is connected with the other in
some way.
Some examples of relevant facts in any cases:
 Admission and Confession
 Dying Declaration
 Judgment of other cases
 Expert Opinion
 Evidence as to Character

Illustration:
‘A’ is accused of the murder of ‘B’ by beating
him. Whatever was said or done by a or B or
the by-standers at the time of beating , or so
shortly before or after it as to form part of the
act, is a relevant fact.
Kinds of relevancy:
1. Logical Relevancy
2. Legal Relevancy
 It is generally upheld that, every fact that is legally
relevant is also logically relevant but every logically
relevant fact may not be necessarily legally relevant
or admissible.
 A fact is logically relevant if it is connected with
another fact but it is legally relevant if the law
declares it to be relevant otherwise it is inadmissible
as evidence in a court of law.
 A fact may be logically relevant to a particular case
but there is no guarantee that it will be legally
admissible in the courts.
 So all the evidence that are to be produced in the
court have to both logically relevant and legally
admissible.
 FACTS NOT TO BE PROVED
 As a general rule of law, the party to a suit is
required to establish his cause before the court by
adducing either oral or documentary evidence which.
However, certain scenarios, the parties to a suit are
not required to provide evidence in favor of their
assertions.
 According to Section-4 of Evidence Act, 2031, it shall
not be necessary to examine evidence on the
following facts:
1. If the fact expressed by a party to the case is
admitted by the other party in the written
form(provided that, the court, if thinks appropriate
may examine evidence on such fact).
2. Facts to be taken as judicial notice by the court
3. Any evidence to presume any fact.
FORMAL ADMISSION
 Section-4 of the Evidence Act 2031 has made
provision of Formal Admission of evidence. This
also falls under the fact expressed by the
parties as mentioned under Section-9 of the Act.
 Admission means acceptance or realization of
any matter which he/she has done. This is used
in both civil and criminal case.
 An Admission is a statement of fact, oral or
written, which waives or dispenses with the
production of evidence by conceding that the
fact asserted by the opponent is true.
 But the principle is that no one generally speaks
against his/her own interest unless the subject
matter is true.
Person competent to make admission:
a) Parties to the litigation
b) His/her agent acting under his/her order
c) His/her legal representative
d) Person having joint interest in the subject
matter of the suit is derived from
e) Person whose liability is in question
f) Person to whom suit expressly refers to.
In the case of Bhuwane vs. Govnt. Of Nepal,
Supreme Court has made decision that
“admission alone is not sufficient to hold a
person liable for murder.”
Exceptional situations where admission is
relevant in one’s own favor:
 Statement accompanied by body or bodily
feelings including statement made on the spot
spontaneous with the incident.
 Statement made by persons who cannot be
found.
 Statement relevant as evidence other than
admission. (above case)
 Statement made with a view to come to a
compromise can never be given as an evidence
because dispute whenever possible must be
tried to be solved by amicable means
Characteristics of Admission:
 It may be oral or documentary
 It is a statement to suggest any inference as to
any fact in issue or relevant fact
 It may be made by any person prescribed under
the law
 It may be made under the circumstances
prescribed under the law
Nature of Admission:
 The statement made by parties during judicial
proceedings are self regarding statement which
can be classified into two:
1. Self-serving(self-advance) statement
2. Self-harming statement
Importance of Admission:
 Best evidence against the party
 The opposite party can rely on it
 Substantive evidence
 Admission made under circumstances
prescribed under the law is binding
Forms(types) of Admission:
 Formal admission or Judicial admission
 Informal admission or causal admission
 Admissible conduct
JUDICIAL NOTICE
 Certain facts are supposed to be already within the
knowledge of court. So such facts need not be proved.
 Facts which are quite famous or notorious may be
subject matter of judicial notice.
 For example: Notice published in Nepal Gazette is the
notification of Nepal Government to public at large.
So such fact are taken by the court without pursuing
the process of admitting evidence
 However, when court is not certain in any fact, the
court may order to the parties of the litigation to
produce such materials which assist it to take judicial
notice. Such materials are not evidence, they are
materials which assists the court to refresh the
memory
 Section-5 of Evidence Act, 2031 deals with judicial
notice
 According to G.D. Nokes: Judicial Notice means
the acceptance by judicial tribunals of the truth of
fact without proof on the ground that it is within
the tribunals knowledge.
 According to Top Bahadur Singh: Judicial Notice is
that the court will admit without submitting the
evidence, the existence and truth of any fact that
is issue, which fact by its nature need not be
proved, which is under the basis of preeminent
principle or universally acknowledged that is itself
known or established.
Importance: There are so many causes why Judicial
Notice is taken as facts not to be proved. One of the
foremost causes is that it fasten the administration
of justice.
Kinds of Judicial Notice:
1. Compulsory or mandatory (need to be taken)
2. Voluntary (can be taken)
1. Compulsory or mandatory (need to be taken):
 Where the court will be obliged to take judicial
notice of such subjects
 Mandatory notice according to Evidence Act,
2031, section-5(1):
a. Geographical position of Nepal
b. Constitution of Nepal and Nepal law
c. Notice published in Nepal Gazetee
2. Voluntary (can be taken)
 If the court desires or is interested can get the
judicial notice
 Voluntary notice according to Evidence Act, 2031,
Section-5(2):
-The court may take judicial notice of the undisputed
facts of general knowledge
- A party to the case requests to take judicial notice of
any fact, the court may issue an order to that party
to submit required evidence regarding that fact and
the court may deny to take the judicial notice of that
fact unless evidence is produced to the satisfaction.
 According to Evidence Act, 2031, Section-5(3):

-The court may take the help of any book or document

to take judicial notice.
 PRESUMPTION
 In simple words, Presumption means taking as true
without examination of proof.
 Presumption is an inference drawn by the court as to
the truth of a particular fact, from other known fact.
 Best has defined presumption as an inference,
affirmative or disaffirmative of the existence of the
existence of some facts drawn by a judicial tribunal
by a process of probable reasoning from something
true or granted.
 According to Cross: A presumption is an assumption
which must be made until evidence to the contrary is
adduced.
 According to Phipson: A presumption maybe defined
as a conclusion which may or must be drawn in the
absence of contrary evidence.
 There are two facts existed in presumption:
a. Basic Fact
b. Presumed Fact
 After the Basic Fact is established, under the
basis of the same other fact(presumed) will be
extracted and unless otherwise so proved of
until otherwise not disproved, the assumed
fact may be taken as evidence.
 For example: if smoke flew, that is a basic fact
and under its basis, the presumed fact is
having set fire of arson. This conclusion will be
retained until unless the firing is not proved.
Kinds of Presumption:
1. Presumption of Law
2. Presumption of Fact
1. Presumption of Law:
a. Refutable Presumption of Law
b. Irrefutable Presumption of Law
 Sometimes the law defines certain situations to
be presumed in a certain way. The law makes
such presumption to make our civil life easy and
practical. Section 6 of Evidence Act 2031 deals
with presumption of law. It’s refutable
presumption that means the aggrieved party
must prove otherwise against the presumption if
he/she is to win the case.
 As per the section 6 of Evidence Act 2031, Presumption
of Law has been categorized as:
A. Presumption of undivided property:
 If more than one co-partner is living together, the law
presumes that the property is in possession of one of the
co-partner is divisible property among other partner.
B. Presumption of joint ownership:
 If two or more person is in joint possession of any
property, the law presumes that each and every person
has equal claim over the property.
C. Presumption of genuinity as to public document:
 The law presumes that each and every public document
prepared in course of public duty and kept is public
record is genuine and accurate as per the law.
D. Presumption of legitimacy:
 Any child begotten during lawful wedlock is presumed to be
legitimate child of the same couple. Likewise child begotten
within 272 days of death of the decreased husband is
presumed to be legitimate child of the deceased husband and
similarly child begotten within 272 days of divorce is
presumed to be legitimate child of divorcees.
E. Presumption of genuinity of published and certified
document:
 If any document purports to publications of any government,
or if any document is certified by any public official without
his/her authority. The law presumes that such publication or
certification is genuine as it purports to be on the face of it.
F. Presumption of genuinity of law or judicial decision published
by foreign government:
 If any document which purports to be law or judicial decision
is published by foreign government, the law presumes such
document to be genuine and accurate.
2. Presumption of Fact(May Presume):
 Presumption of fact defers from presumption
of law in the sense that presumption of fact is
at the option of the court whereas,
presumption of law directs the court to
presume certain fact mandatory on the given
situation.
 Sometime the law gives option on the court
exercise its prudence and practicality and
infers certain facts in favor or disfavor of
either party to the litigation. Section 7 of
Evidence Act, 2031, deals with presumption of
fact. The law has specified three situations as
follows:
A. Presumption of theft:
 If a person is found in possession of stolen property the
court may presume that he/she either a thief or a
person dealing with stolen property. The court may not
presume such fact if it is proved that the accused may
come across of such property because of his/her nature
of business.
B. Presumption of adverse interest:
 Any person who is in possession of any document if does
not produce before the court when ordered, the court
may presume that the document may have evidential
value against such person.
C. Presumption based on logic and experience/ Natural
Presumption:
 If any incident, conduct of the persons or general trend
of the acts-transactions reasonably leads towards
certain presumption, the court may presume other facts
accordingly.
 The law presumes that a child under 10 cannot
form guilty mind, the proof of under agedness
of 10 years is sufficient to make believe the
court that the child is innocent. The aggrieved
party cannot give evidence that even if the
child below 10, he/she did the act maliciously,
with ill will or under cruel intention.
 Any person who is not known to his/her close
relations for more than 12 years of period is
presumed to be dead for the purpose of law.
 Transactions made in the normal course of
business are assumed to have been conducted
in the usual manner unless there is evidence to
prove.