Evidence Act 2031: Burden of Proof, Presumptions, and Witnesses
Exam Snapshot
The Evidence Act, 2031 is the cornerstone of procedural adjudication in Nepal. For the LLB and Bar exams, you must master the division of the burden of proof between prosecution and defense (Sections 25–28), the distinction between "may presume" and "shall presume" (Sections 6–7), and the rules of witness examination (Sections 37–51).
Core Concept
- Burden of Proof: Under Section 25, the general burden in criminal cases lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. However, under Section 26, the burden shifts to the accused if they plead a general exception, alibi, or special privilege.
- Presumptions: Legal inferences drawn by the court. Section 6 contains "May Presume" (rebuttable/discretionary) where the court can choose to accept a fact as proved unless disproved. Section 7 contains "Shall Presume" (obligatory unless disproved).
- Witness Competency: Section 37 states that all persons are competent to testify unless the court considers them prevented from understanding the questions or giving rational answers due to tender age, extreme old age, or mental/physical illness.
- Witness Examination Order: Under Section 50, the order is Examination-in-chief, Cross-examination, and Re-examination.
Nepal Law Anchors
- Section 25: Burden of proving the offense lies on the plaintiff/prosecution.
- Section 26: Burden of proving exceptions or innocence under specific claims lies on the defendant.
- Section 6: Court's discretion to presume facts (May Presume).
- Section 7: Court's obligation to presume facts (Shall Presume).
- Section 37: Competency of witnesses.
- Section 38: Number of witnesses (No specific number required; quality over quantity).
- Section 48: Hostile Witness.
- Section 50: Order of witness examination.
Confusable Terms
| Term | May Presume (Sec 6) | Shall Presume (Sec 7) |
|---|---|---|
| Nature | Discretionary | Mandatory |
| Rebuttal | Can be disproved by evidence | Must be disproved by evidence to negate |
| Legal Weight | Court may call for proof of the fact first | Court must regard fact as proved unless disproved |
MCQ Traps
- Trap: Thinking the burden of proof always remains on the prosecution. Correct: The burden of proving specific facts or exceptions (e.g., self-defense or alibi) under Section 26 and Section 28 shifts strictly to the defendant.
- Trap: Believing children or mentally ill persons are completely barred from testifying. Correct: Under Section 37, they are competent witnesses if they can understand questions and give rational answers.
- Trap: Thinking a specific minimum number of witnesses is required to prove a fact. Correct: Section 38 states no particular number of witnesses is required in any case.
Example
In a murder trial, the prosecution proves that person A stabbed person B. Person A claims they did so in self-defense. Under Section 25, the prosecution must prove the stabbing. However, under Section 26, the burden of proving the circumstance of self-defense shifts entirely to A.
Memory Hook
P-S-W-50: Prosecution proves first (S. 25), Shall/May Presume guides the judge (S. 6-7), Witnesses have no minimum count (S. 38), and exam sequence is locked in Section 50.
Quick Revision
- Prosecution bears the initial burden in criminal cases (Section 25).
- Hostile witness (Section 48) is one who gives statements against the party calling them.
- Leading questions are generally allowed in Cross-examination (Section 51) but not in Examination-in-chief without court permission.
- Estoppel is governed by Section 34.
- Section 38 explicitly establishes the principle of "weights of evidence, not volume".