(C)Historical Development of Law of

Evidence in Nepal
Nepal does not have long legal history. The country remained divided into different
kingdoms. Historically, the country was ruled by four different rulers like, Kirat dynasty,
Lichhavis dynasty, Malla dynasty and Shah dynasty. In early period, Nepalese legal
system was guided by religious philosophy. The first codification of law of Nepal was
Manab Nyaya Shastra. The Manab Nyaya Shastra was formulated by late king
Jayasthiti Malla in 1436 (BS). In this first code, there was description about the proof
which had to be based upon valid things or reality based. According to this code, the
proof must be tested by expert. Mainly, this code is divided into three types of
evidence such as; Document, witness and possession. After then, in 1910(BS), Jung
Bahadur Rana promulgated the new code the time when he returned to Nepal from
England. This code of law was named as“ Muluki Ain, 1910(BS). This code is historical
document of our legal system. This law regulated some provision about evidence law in
written forms. Short description about practice of evidence in Nepal in different time
1.Ancient thought of law and justice: The Nepalese legal history was guided by religious
philosophy, specially Hindu philosophy. This philosophy held Dharma as composite
feature of law and justice. In the Ancient thought there was no written legal code. At
that time, law and justice is that which King speak and do.
2. Trial by Ordeal:- Where there was no reliable evidence in case, trial by ordeal and
deposition used to be method of adjudication. The method of trial by ordeal is formally
used in criminal case to find out the guilty or innocence of the accused person. It was
painful practice at that time. Example of trial by ordeal are submersion in water, burning
from hot iron etc.
3. No representation of lawyer: In this time, every legal proceeding fulfil without legal
representation as well as lawyer on behalf of the party. There is no legal system to
appoint the lawyer for litigation before 2007 (BS). However the party could choose any
person of their choice for defending their dispute in court or tribunal.
4. The system of Sarjamin (Spot investigation process): In this process, the criminal
investigation done by public authority in crime scene. All information of criminal
incidents were collected by public authority through Sarjamin process. Sarjamin
procedural is formal procedure. In this process public authority take statement from eye-
witness or hearsay witness. It is also called “DOR” process. Supreme court of Nepal held
that “ sarjamin is not substitute of a witness. In sarjimin the person giving a statement
do not take an oath before their deposition, nor they can be cross examined by the
opponent. So they cannot be liable for perjury, if the statement proved false later on.”
(Bir Bahadur Tamang vs. Krishna Maya Tamang. NKP. 2019 P. 17).
5. Examination of witness: The Hindu philosophy guided by Dharma.
The religious books called Dharma shastras are like Manusmriti,
Yagyabalkya smriti, Bhanu smriti, Narad smriti etc which have given
elaborate description of competency of witness and their method of
examination. These books emphasized that witness should be a person
of high moral values, honest in nature, free from greed etc. If any
persons have these negative things they could not be presented as
witness in court. At that time every witness give their statement after
completion of their oath in the name of God. The oath must have to be
taken with commitment in the name of sun or fire or God. If the
statements tends to be false, he had to be liable for punishment. During
this period, women were taken as best witness in women related cases.
The first code of Muluki Ain 1910( BS) had incorporated some evidence
related provision in section 34 of the chapter of Adalati ko Mahal. But it
does not include detail about examination of witness.
After promulgation of first written code in 1910(BS) it was amended thirteen times till
2012( BS). The evidence related provisions were developed day by day. In grave
offence, court officer himself was supposed to visit resident of witness to collect
evidence if the witness was unable to attend in a court for giving statement because of
his agedness or if a women having high social status and non exposure before the
public. Among these provision one provision is still prevails in law though it is not
brought in practice. Section108 of the Muluki Criminal Procedural code, 2074 recognize
that, judge or officer of the court may take statement of witness in where the witness
live if witness is physically unfit. The law has made direct evidence to compulsorily
attend in the court to give statement. A court could examine evidence through “Banda
Sabal” if witness living in long distance or unable to attend in a court. The word “Banda
Sabal” means to examine the witness through letter. This “Banda Sabal” related legal
provision still prevails in our legal provision, which is address in Sec. 107 of the Muluki
criminal procedural code 2074.
At that time witness were supposed to hold Copper and Tulsi for oath during the course
of examination of witness. This provision was discontinued after 2020(BS) . This
provision was discarded through amendment of Muluki Ain in 2020 (BS). In new
provision of Muluki Ain 2020, it has recognized about cross examination. Another
provision of the same code is includes that if possible, the court must take evidence
from all the witnesses on the same day if there comes a case with more than one
witness. At that time, some persons were not qualified as witness, like; Blind person,
Dumb and a person convicted up to 3 times or more in case of perjury were taken as an
incompetent witness .
6. Documentary Evidence:- Documentary evidence is a vital evidence from
ancient time to present time during court proceedings. Kagach Janchko
Mahal of Muluki Ain had made strong provision to produce document as a
vital evidence.
7. Admission and confession:- Until 2007 (BS) admission and confession was
taken as a major subject in criminal investigation process and it was taken as
a prima facia evidence. Confession in extra -judicial authority was taken
prima facie evidence . But present legal system recognize confession before
police as evidence only if the accused is free from torture, influence,
pressure, coercion etc.
8. Character Evidence:- In the past time, character evidence was taken as
vital evidence. The accused person’s character also used to play important
role in course of decision in criminal case. The judge used to make decision
by seeing and observing the past character of accused person. But evidence
Act, 2031 has dismissed such provision and character of accused cannot be
taken as an evidence unless the character is itself on disputed issue . This
provision is recognize through sec. 24 of the Evidence Act, 2031(BS). The
decision of the supreme court of Nepal in the case of Molhusen Hendrik vs.
Nepal Gov. is that “ Bad character of an accused as relevant fact to convict
9. Evidence Act, 2031
Evidence Act, 2031 is a prevailing law about evidence. some other
general law and specific laws also recognize about evidence related legal
provision. New aspects of Evidence Act is mentioned below;
 Court can take Judicial notice itself – sec. 5
 Presumption of law and fact by court- sec. 6
 Hearsay and exception of hearsay rule- 10,11,12
 Expert opinion- sec. 23
 Burden of proof- sec. 25 to 33
 principle of estoppels- sec.34
 Privileges of witness- sec. 40 to 45

The End