 Good evening friends, and it gives us immense pleasure to connect with Justice Vedrakash Sharma, a former judge from Madhya Balesh High Court, and who is also the chairman of the MP law commission. And those who have been connected with beyond law CLC would have seen that he had shared his earlier knowledge on the evidence itself, which is already being well received. And therefore, in continuity with that, we had requested Justice Sharma to share his knowledge on the aspects of how to appreciate the evidence, and how do you master it. And that's why it has been captioned as mastering the art of appreciating evidence. And we thought that there could be no better person who can explain these nuances to us. And we have been receiving requests in this regard. And despite the fact that we are in the last week of the this year, and everybody is busy with the Christmas, as well as the new year. Yet Justice Sharma, as usual, his passion for teaching knowledge and sharing with the everyone. Acceded to our request, and amongst us, he's there, and we will request him to share his knowledge. Over to you sir. Thank you, Prigalshi. A very good evening to all the participants who are virtually connected in this webinar. The topic, mastering the art of appreciation of evidence, equals to the of perennial importance. In the sense that ultimately, when after a long run trial, both the parties have reduced their evidence before the court. To decide which evidence has to be accepted. Which evidence has to be rejected. And ultimately, what should be the fate of the case. Now, indeed, it is a journey for search of truth by following the principles of fair trial. And this fair trial approach must also reflect in the decision itself. Meaning, thereby, that the judgment or the order, based on a particular set of evidence, must reflect that the judge has applied its mind to all the facets of the evidence. And has examined the evidence in a manner so as to arrive at the truth. Now, basically, the appreciation is a very natural process. Whenever something happens before us, we just start appreciating whether it is right, whether it is wrong, whether it can be accepted, whether it cannot be accepted. But when this very process has to be applied in the process of dispensation of justice, certain well-settled principles with regard to appreciation of evidence has to be kept in mind. So, the topic with regard to marshalling the art of appreciation of evidence, requires that we should know that ultimately what is appreciation of evidence, who is required to appreciate the evidence, what may be the significant role of the lawyers in this process of appreciation of evidence, what are the fundamental principles with regard to the appreciation of evidence, what are certain conventional principles or ideas which can sometimes hamper the process of true and just appreciation of evidence. And then, we are also supposed to examine some specific cases with regard to appreciation of evidence. Now, the first thing is, very simply, of course, this expression has not been defined in the evidence set or in the code of civil or criminal procedure. Still, this is something very well discussed and deliberated concept in the judicial circles. So, appreciation in the process of justice dispensation means finding out the worth, the value, the quality and the trustworthiness of a particular piece of evidence with regard to a disputed question of fact. So, in that process, the judge has to carefully examine the evidence with regard to the points which are in dispute before the play. Now, basically it is the evidence which has to be appreciated, but then a judge or a lawyer must be very careful that what we are appreciating or what shall ultimately form the basis of judgment or order that should be firstly relevant material, relevant under section 5 to 55 of the Evidence Act. And apart that, it should also be admissible evidence. Sometimes, the evidence may be relevant, but may not be admissible. As we see in the case of privileged communication, communication between the lawyer and his client, communication between husband and wife. So, the piece of evidence which has to be evaluated or examined to find out its worth, value, quality and trustworthiness should be relevant as well as admissible. Therefore, the irrelevant material or though relevant but inadmissible material has to be carefully kept out. Now, this appreciation has to be done not in a directionless manner. It has to be carried out with regard to disputed points of facts which are necessary to be determined to decide the right liability or disability asserted by one party and denied by the other party. So, the judge or for that matter, the lawyers who as officers of the court are assisting the court with regard to this process of appreciation, they must have a clear cut picture in a chronological manner with regard to various disputed points involved in a particular case. Now, this can not be a half hazard process. Ultimately, these questions on which the evidence has to be appreciated must be put in a systematic and logical order. And unless these points are there in the mind of the judge or the lawyer, it may not be possible to properly appreciate the evidence in a particular case. Now, the second thing is that apart from having a clear cut idea about the disputed points of fact, maybe principal facts or maybe collateral facts. The other thing which should be preceded before marshalling, before appreciating the evidence is the marshalling of evidence. Because if marshalling of evidence, again a term which has not been defined in the evidence act or in the procedural laws, if marshalling of the evidence is not carried out in a perfect and purposeful manner, then definitely it may not be possible to appreciate the evidence in its true sense. We can just understand it by way of a very simple example. There is a case pertaining to rape. And the dispute is with regard to the ace of the victim, that if the prosecution version is that the victim was not of consenting is. On the contrary, the plea raised by the defense is that the victim has attained the consenting. Now, in this particular situation, there may be multiple types of evidence before the court. There may be ocular evidence of the victim and her parents. There may be documentary evidence in the shape of birth certificate. There may be scientific evidence in the shape of ossification text. So now, the first thing that is required to appreciate the evidence in connection with the ace of the victim is to marshal the evidence on the point of case. Now this marshalling can be defined as the picking up various pieces of evidence on a particular disputed point of fact. And putting them together, so as to to examine their worth value and quality in a systematic scientific and logical manner. So that will require that all the oral evidence is examined. The oral testimony of the proscriptics have parents. Then whatever conclusion is arrived at on the basis of the view is taken on the basis of this oral evidence that has to be tested on the basis of the documentary evidence as well as scientific evidence. Only then a final, final view can be taken. Final finding can be recorded with regard to the ace of the victim. So this is something which we call the marshalling of evidence. Friends, as the church happens to be the backbone of the system of administration of justice. So the appreciation and marshalling happens to be the backbone of judgment or order. Because ultimately it is on the basis of appreciation that the church may assign reasons for acceptance or rejection of a particular piece of evidence. Otherwise, it may amount to an arbitrary process, which may be not in accordance with the doctrine of fear. Now proceeding further, it is necessary to understand what are the statutory principles which can be found in the evidence act with regard to the appreciation of evidence. Now in this regard, first and foremost is section 118 of the evidence act, which deals with the competence of the witness. Now as per section 118 of the Indian Evidence Act, a witness who has the capacity to understand the question and to answer it in a rational manner is a competent witness. Now section 118 nowhere prescribes that a witness blow a particular ace or above a particular ace will not be competent to be a witness. The only qualification attached to be a witness is that the witness has the understanding of the question and has the capacity to answer it in a rational manner. So there are numerous cases of honorable the apex court that even a child of five or six or seven years by way of his maturity of understanding may be a good witness in a particular case. If he if it is demonstrated before the court that he has the ability to understand the questions and to answer them in a logical manner. This provision has to be kept in mind for the particulars. The judges and lawyers many a times put a tag to a particular witness that this is the police witness. This is the relative witness. This is the very old witness. This is the child. Of course, such type of tagging may put the court to little extra caution caution in the sense that if it happens to be a child witness to first examine whether he has the capacity to understand the question. If he happens to be a very old witness, then again to find out the same thing. So, the message which flows from section 118 of the Indian evidence act is very clear. That it is only the competence of the witness, we should matter in the mind of the judge and in the mind of the lawyers who are there to assist the court in appreciating the evidence. The second provision in the evidence act which attracts our attention is section 134, 134, which, which very clearly provides that no particular number of witnesses are required to prove a particular fact. It happens so many times we say that there is a solitary witness, there is no corroboration, there is nothing there to support the witness. So, that may not be the ground to reject the testimony of a witness, because ultimately the law does not insist on the plurality of the witnesses. Rather the principle criteria with regard to the acceptance of a piece of evidence coming from a witness is the trustworthiness, the reliability is the inherent strength of the piece of evidence. Now, one more provision which is pertinent in this regard. In section 3, in which we do find a number of definitions including the definition of proved, disproved and not proved. Now, in this definition of proved and disproved, we find two criteria. One, that the judge after considering the matter before it either thinks that the fact has improved or secondly, considers its existence so probable that a prudent man in the similar circumstances will consider to exist or not exist. So, we find that the one important criteria with regard to the proved or disproved aspect of effect which basically depends upon the quality of the evidence is the probability effect. Then, lastly, we need to look at section 114, particularly illustration B of section 114 and section 133. Now, section 114 illustration B of the Indian Evidence Act that says that an accomplished shall be unworthy of credit unless corroborated by independent evidence in material particles. So, this one is the solitary provision in the entire evidence act which insists as a matter of law on corroboration. We do not find any other problems. And just see that the strength of this provision has been diluted in section 133 of the evidence act. So, section 133 of the evidence act says that a conviction shall not be invalid simply because it proceeds on the basis of uncorroborated testimony of evidence. Now, these two provisions taken together unmistakably indicate to the fact that the framers of the evidence act have put much more confidence in the judge with regard to the trustworthiness and reliability of a witness. Of course, that should be based on the very sincere scientific and systematic appreciation of evidence. And naturally, in this exercise, it just has to be able assisted by the lawyers for the parties. Because sometimes the judge may have its own perception with regard to a particular piece of evidence, and some important aspect or dimension of that piece of evidence may be overlooked by it. But here, if the lawyer is very, you see, aware about that aspect or dimension, then that can be put before the court in a very clear manner. So, these are the relevant provisions of law which we find in the evidence act and which have a very close bearing on the issue of appreciation of evidence. Now, let us proceed further and try to find out that ultimately what are the well established principles or the yardstick to appreciate the evidence. Now, as we discussed earlier, section three of the evidence act pertaining to the definition of proved and disproved refers to the probability factor. Now, this probability factor is the most natural factor with regard to the acceptance or rejection of a particular piece of evidence. So, suppose if I state on oath that in the morning I ran for almost 10 kilometers in five minutes, then how many of the participants in this webinar will accept my statement. Maybe that there are three or four more persons to support my testimony. In my humble view, each and every person will reject this piece of evidence. Because whatever may be the number of witnesses, maybe that it is not suffering from any ambiguity or discrepancy is still the statement itself is totally improbable. Running 10 kilometers in five minutes, meaning thereby two kilometers in one minute, not humanly possible. That is the first yardstick to measure equality and strength of a particular piece of evidence happens to be the factor of probability which flows from the definition of proved and disproved contained in section three of the evidence. This is only first qualifying test. Maybe the statement is that almost I ran one kilometer in five minutes. So now you will think that this statement is at least probable. It is true or false. It is a different thing. Then it qualifies the probability factor, which is the first factor. If a statement is not qualifying or a piece of evidence is not qualifying on the probability factor, then it has to be rejected without much further examination. But if the probability factor is just okay, then we have to see the intrinsic quality of that particular piece of evidence. And this intrinsic quality of a piece of evidence depends upon the that whether the statement is coherent. Whether the statement is devoid of any ambiguity, whether it is free from anomalies or exaggerations or material omissions, which may render it little untrustworthy. So here the judge has to examine that what is the intrinsic quality of a piece of evidence, meaning thereby whether it suffers from material omissions and contradictions. Whether there are certain aspects which are contradictory with the other piece of evidence on the same point, maybe of this witness itself or with other witnesses, because sometimes a witness is deposing something in the examination in chief. And when he is being tested during the cross examination, he may come out with almost different set of facts, just thereby denting the credibility of the witness on that particular point. So this is the role of the intrinsic value. And it has been said that if the inconsistencies or the omissions are of minor nature, then just if you are on a V, then just ignore them like pebbles. But if they are in the shape of boulders, then you have to stop and you have to think about the acceptability of that piece of evidence. Now, suppose the piece of evidence also qualifies this factor of intrinsic worth or intrinsic value. Then the third question with regard to this piece of evidence will arise as to what is the animus of the witness. Why ultimately he has come before the court, whether he is having some animus in favor of the witness, in favor of a party, in favor of the plaintiff or defendant, in favor of the prosecution or defense, or whether he had something else to grant. So that way, the third factor which need to be examined with regard to the quality of a piece of evidence is the animus of the witness. And in this regard, the fourth correlated aspect is the countenance of the witness reflected during the time of his or her examination. Under the code of civil procedure and under the code of criminal procedure, it has been advised that the judge may record the countenance of the witness, the demeanor of the witness, and that may assist the court and that may help the liars appearing for the respective parties to determine the quality and trustworthiness of the particular piece of evidence. Now, friends, the final thing with regard to this yardistic process of evaluating a piece of evidence is the approach of the judge or for that matter the approach of the answers for the parties should be integrated and not truncated. Meaning thereby that we cannot, we cannot evaluate a particular piece of evidence by just taking out here and there a particular line of particular parts. Ultimately, the things have to be examined and evaluated in their totality. And that is the message which has been conveyed by honourable the apex court of the country in the famous case of Harijan Thirupala versus public prosecutor, 2002 6 SCC 470. So now this is with regard to the process of appreciation and the yardistics which are available concerning this process. Now, I just refer to that if the discrepancies or the omissions are in the nature of pebbles, then the court must tread upon them. But if they are in the shape of boulders, then it is time to stop, don't try to jump over. And this statement has been beautifully made in the case of Krishna Mochi versus the state of Bihar, 2002 6 SCC 81. That is a three judge bench decision. Now, while appreciating the evidence, particularly the ocular evidence, the judge as well as the counsels must be very much aware of the fact that no person has a photographic map. Secondly, when something is happening, then he or she is overtaken by the evidence. The power of observation may differ from person to person. At the same time, the power to recall may also differ. And again, it has to be kept in mind that the sense of time, the sequence of events and the atmosphere at the time of the incident and the atmosphere during the examination of the witness. They have also their role in a different, different manner and a practical and a pragmatic approach has to be adopted in all these respects, if the court has to arrive at a just and fair decision. And of course, the learned counsels who are the officers of the court are supposed to assist the court in this process. Sometimes, by reminding the judge that no, no, the discrepancy is in the shape of Boulder, please don't try to jump over it. Or sometimes persuading that no, no, these are just very small pebbles and one can tread over it. Now, we can further discuss certain concepts which have overtaken our mind for many, many decades. Or I can say, since we joined this system of administration of justice, and it is necessary to deliberate upon those principles, because these principles sometimes affect the process of decision making. And maybe that sometimes it may just leave a gap between what is justice and what is injustice. The first thing is that let 100 guilty persons be acquitted, but not a single innocent person should be convicted. So if that happens to be the correct approach, then there may not be justice either to the victim or to the society. The balanced approach which should prevail in the mind of the judge as well in the mind of the lawyers is that neither a guilty person should be allowed to escape from the consequences of law, nor a innocent person should suffer at the hands of the justice delivery system. And that is the approach which has been recommended by honorable the apex court of the country in the case of state of West Bengal versus Orilal Jaiswal. That is 1994, 1 SCC page 73. So what may be the exact rule which has to be followed in current times so that the credibility of the criminal justice system enhances in the mind of the people and they are not tempted to take law in their hands. Under the misconception that no, there are no chances of justice being done by approaching or accessing the justice delivery system. They should have the firm belief that we will get justice by accessing the system which is very sound. Now, the next principle which we have been following is with regard to benefit of doubt in criminal cases. The rule of benefit of doubt is highly appreciable, because if there is a reasonable doubt in the mind of the judge with regard to the guilt of the accused, then it is better to stop the hands and to extend the benefit of doubt to the accused. But then this benefit of doubt is reasonable doubt and this reasonable doubt is based on sound logic and reason. It is not a flimsy doubt, it is not a doubt which is just imagination of the uncertain mind and in this regard we can very well refer to the principles of law laid down by honorable the apex court of the country in two cases. Firstly, that state of West Bengal versus Ori Luljeswal and secondly, the case of Indarsingh Varshaj state, 1978, 4 SCC 161. Now, the third principle which we have just seen being discussed many, many times is I will just take up all the queries and the questions which are being raised by the esteemed participants. First, please let me complete and then it will be something we will discuss the doubts which are there in the mind of the honorable listeners. Now, the third principle which has puzzled us for long is falses in omnibus. It means that false in wanting and false in everything. Now, friends, it has repeatedly been remarked by honorable apex court of the country that this doctrine is neither a sound rule of law nor a sound rule of practice and at least it is not at all applicable in our criminal justice system. The reason is very clear. This is a famous case of the state of UP versus Anil Singh, 1980, a year 1980. In that case, the apex court pointed out that you hardly come across a witness who has not exerited or who has not omitted to state something which she was or she was supposed to state. And this is simply because there is a human tendency, tendency to forget something, tendency to process the things in one manner, tendency to add embroidery to aversion so that it is little more believed by the court in a more particular manner. But then, if a witness is found to be reliable on the central aspects of the issue, and if this embroidery is of very, you see, trifling nature, then that has to be referred to at the time of appreciation and has to be put aside. Because, ultimately, we have to see that whether the witness is trustworthy or reliable. And if there are very minor discrepancies, then definitely the court should be persuaded to accept that. Now, when I say that the witness can be relied upon, despite that there are some improvements or embroideries, then that should be of natural character and insignificant nature. And if there are only very essential points which are very significant for the determination of the case, then of course, the judge shall be very much justified in rejecting such piece of evidence. So, the next issue comes with regard to cooperation. If we go through the judgments, particularly at the trial court level, then there may be many, many cases where the testimony of a witness is rejected, simply assigning the reason that there is no independent corroboration to the testimony of the witness. But then, as I told you in the beginning, the rule of corroboration as a rule of law is found in illustration B2 section 114 of David Ansek, and that too has been diluted in section 133 of David Ansek. This is a famous case of Vadi Vilu Thiva. And in that case, the apex court has very beautifully examined that ultimately where a court would be justified in demanding corroboration. And in that case, the apex court had said that a witness can fall in either of the three categories. Firstly, he may be wholly reliable. Secondly, he or she may be wholly unreliable. And thirdly, that he is partly reliable and partly underlined. So, when a witness is wholly reliable, and if the court has reached this conclusion after proper appreciation of the evidence available before the court, then it has to be rejected. No amount of corroboration can help the court in case of such a witness, wholly unreliable. Now, another case is that of wholly reliable. The apex court has said that if the witness is wholly reliable, then no corroboration is required in such a case. Because if the testimony of a witness is of that sterling character, then why to seek corroboration? The citation of this case, Vadi Vilu Thiva is AIR 1957 Supreme Court 614. And the principle laid down in this case has been reiterated in many cases, including one reported in 2003 to SCC 401. Now, this third category, partly reliable and partly reliable. This opens the scope for seeking corroboration and what type of corroboration will work basically depends on what is the ultimately this partly reliable and partly unreliable tenor of the evidence of evidence. Sometimes corroboration from the other witnesses may work. Sometimes the court may demand that no corroboration should be by independent evidence. And that will depend on the facts and circumstances of the case. Now, this is with regard to the corroboration issue. Now, one more maxim which we have come across many a times is res ipsa laquita. Now, res ipsa laquita is a basically a principle which was applied in the cases of torts. It means that the things itself is being. So if the things are by themselves speaking, and there is no other evidence, then of course, the court may be justified in drawing inference on those facts, which we constitute circumstantial evidence, and when put together, they indicate very clearly towards a particular situation. That is something but then it has generally been found that this doctrine is not applicable in criminal cases. Of course, we will find some cases relating to accident where this doctrine has also even been applied in criminal cases. Now, this is with regard to those principles which we have throughout been encountered in our journey in this system of administration of justice. Now, we go to the next part of the discussion. And that is the appreciation in the case of circumstantial evidence. Now, when we talk about the quality of the evidence, then it is very clear that hearsay is no evidence except in cases specifically provided under the law at section 6 and section 32 of the evidence. But then this circumstantial evidence is not hearsay evidence. When we go through section 7, 8, 9, 10, 11 up to section 16, then we find that there are various situations, various circumstances including motive, previous conduct, subsequent conduct, intention, occasion, cause, effect, which also demonstrate in very loud terms with regard to the facts, with regard to the reality. And particularly in criminal cases where many a times it is almost impossible to gather direct testimony by way of ocular testimony that the courts have applied this doctrine of circumstantial evidence and have recorded the findings with regard to guilt. Now, the principles in this regard are well-settled and have successively been stated by Honorable the apex court of the country in many cases. Firstly, that all those circumstances should be proved, fully proved by Honorable the apex court of the country. Secondly, that these circumstances or these facts which constitute the part of the circumstantial evidence should constitute together a chain, which unerringly points singularly towards the guilt of the act. So, if the situation is that there is still a doubt with regard to the some other person, then definitely the circumstantial evidence cannot be made basis for arriving at the finding of guilt. Now, in this regard, the principles of law have been enumerated very clearly in a number of cases, and we can refer to one case, the state of Madhya Pradesh versus Sanjay Roy. It is AIR 1952, Supreme Court 343. So, this is with regard to circumstantial evidence. Now, one very important factor which comes repeatedly before the courts is with regard to the trustworthiness of the police officers who depose before the court with regard to the investigation of the kids or various actions taken by them during the process of investigation. Only yesterday I was going through a brief that was a case of murder by hired clerks, and I could see that the investigating officer has tried to interpolate so many things. He recorded the statement of the witness who spoke about the enmity between the deceased and accused, and when billed during the process of cross examination, he admitted that at an earlier occasion, soon after the commission of the offense, this witness spoke that there was no enmity of the deceased with any person known to him. So, meaning thereby this first statement, maybe of course it was recorded, but it was not produced before the court, though there was a mention in the case diary, and the subsequent statement was almost a interpolation that was placed before the court. So, there may be police officers who are highly partitioned, they may have a particular bank with regard to the case, and if it can be demonstrated before the court that the particular investigating officer or police officer was not independent, was biased, was investigating the case with a particular design to arrive at a particular conclusion, and definitely the court in the first stage should be very careful in accepting such evidence, and if the things are serious, then there should be rejection of such evidence. Now, the ultimate message which comes from this particular aspect relating to the testimony of the police witnesses is that a serious effort has to be made that whether you see simply saying that an investigating officer is interested in the success of the case may not by itself be sufficient to reject his testimony in a mechanical manner. There should be something apart from this factor so as to reject the testimony of a witness on the ground that he has not conducted the investigation in a fair manner. Because the ultimate thing which should be there in the process right from the stage of investigation till the delivery of judgment is the process of fairness, and if the fairness is compromised, then the court is justified in being little extra cautious. And then it becomes the bias duty of the councils appearing for respective parties, I will say even the prosecution to put before the court all the facts, so which can help in determining the truth in the matter. Now, when it comes with regard to the witnesses, one we evidence we find in many cases the child. Now, as we as we discussed earlier that section 118 of the evidence act does not. Stipulate any specific qualification with regard to any witness, except that the witness is able to understand the nature of the question. And secondly, that he can give a logical answer to the question. And in that regard, we have the process that when a child witness comes before the court, then certain preliminary questions are being put to the witness, so as to ascertain that whether this witness is having that degree of maturity, which can which can make him qualified to be a witness in the case. And it is only after that that the child witness will have to examine. And if this witness is found to be truthful, of course, it has been cautioned by the honorable apex court of the country, that it is very easy to influence the child. It is very easy to lure a child. And it is also very easy to create a witness and to just force him to give a particular type of evidence. So while appreciating the evidence of a child witness, the court should be very careful about all these aspects. Because if a finding is recorded without a sound basis, then definitely it may result in injustice, either to the victim or to the victim. So these are the areas, of course, this field of appreciation of evidence is very vast. In the sense that there are questions with regard to the use of first information report, the use of a statement recorded under section 161 of the CRPC, the use of the previous statement. But then the basic thing is that the evidence, ocular evidence first has to be scanned and examined by keeping in mind so many factors which we have discussed. And when it comes to the statement, previous statement in the shape of a statement under section 161, then we know that it can be used only to contradict the witness by the defense and with the permission of the court. In certain specific circumstances by the court, by the prosecution. At the same time, previous statement may also be relevant. If it is not a statement under section 161 CRPC for corroboration and contradiction. Likewise, the first information report many times first information report is used even to corroborate the testimony of other witnesses, which cannot be used at all. Because it is a previous statement of the person who has lost the report, or at which instance the report has been recorded. So that can that is the limited use of the first information report. So friends, I think this is something which I wanted to share with you. The last point in this, in this entire discussion relates to the difference between appreciation in civil cases and criminal cases. Now, the standard of proof, which we find with regard to the criminal cases, and which is very much settled without any idea of that, that is the proof beyond reasonable doubt, and which proceeds on the presumption of innocence regarding the guilt of the accused. And that has to be followed. Otherwise, there may be danger of injustice being done. But this principle of proof beyond reasonable doubt is not applicable in civil cases. The principle which we apply in civil cases is the proof by preponderance of probabilities, probability, a factor which we discussed in the life of definition of proved and disproved finding place in section three of the evidence. Now, the distinction is very logical. In criminal cases, the consequences are almost irreversible. And if a finding of guilt is recorded on the basis of preponderance of probabilities, then there may be many, many chances of injustice being done to the accused. But in civil cases, the situation is different. Firstly, the history of the civil cases is almost very intricate. There may be a lot of witness regarding which the evidence have died, witnesses have died, or that they have migrated to some place, or that they are not available. So therefore, it is the preponderance factor which weighs in the mind of the court while recording a finding in civil cases. That is the basic difference. Otherwise, if we just go through the provisions of the Indian Evidence Act, except for the fact that certain provisions like confession, which is provided in section 24 to section 30 of the Evidence Act, exclusively applicable to the criminal cases, and admission in the Stupol exclusively applicable in criminal civil cases. But otherwise, the Evidence Act does not draw a line with regard to the nature and standard of proof in civil or criminal cases. Now, this is something which I wanted to share. Of course, it has been a wonderful opportunity to speak to all the esteemed participants in this webinar through this media, which has enabled us to come together at a platform and to discuss an issue of perennial importance in the system of administration of justice. And I will be very happy if certain questions and queries are raised and we can make the entire this webinar a little more interactive and more useful. Thank you, because if there are any questions, I will be happy to respond to those questions because I could just see was speaking, there were certain queries in the chat box. So now we can just refer to those queries, and I will be very happy to respond to those queries. This is by Ismail Nehl. What happens to the evidence if witness dies and could not be cross examined. If witness dies, section 32 and 33 are there. Section 32 all speaks about the witnesses who have died. And the alternates which are available to bring the evidence in respect of such witnesses. If one is that dying declaration, then there are other other aspects also in some cases some recording may be there some statement may be there. That can be brought something is listened or heard by some other witness that has been made admissible of course that is hearsay, but then section 32 and 32 33 of the evidence act, they are exceptions to the rule of hearsay. And those if the if this particular situation is covered by a particular provisions containing section 32 and 33 of the evidence act, then that can be brought on back. Normally people ask that this is one of the questions that we have received on the WhatsApp, it says. Little more loudly. This is what is the relevance of the FIR for the purposes of evidence. Now the relevance of FIR now FIR firstly, it is simply which gives but the gives you see a motion to the entire criminal process puts the criminal law into motion. That is the first thing with regard to the FIR and the second thing is that it is a statement of the maker. So, when it is a statement of the maker, it can be used for contradiction as well as corroboration of the person if he is examined before the court. Now this FIR can also be used as a dying declaration if the person who has lost the FIR is a victim and has died in the incident and the issue of his death is in question in that very case. And the thirdly, we have the the well settled law that an ends an FIR FIR is not expected to be an encyclopedia. It is simply which which puts the criminal law into motion. So, sometimes many times it happens that why it is not there in the FIR, why that has not been put in the FIR, you see the FIR is lost when really there is a grave crime, then it is lost in a very informal way. No, and if a thought has been given to losing the FIR then it loses its its velocity and its strength. So, it the instantaneous character of the FIR attaches value to it and if it is a thought out FIR it has been pre-planned and you see some manipulation is there then the value of the FIR decreases. But then ultimately it is a statement of the maker. This is by Abhishek he says, how do you read the evidence of the hostile witness? You see this expression hostile witness has nowhere been used in the evidence. What we find is only that if a witness is called by a party and he is just going away from the expected lines then the party calling the witness may seek the permission of the court to put questions to that witness. Questions to that witness which can only be put during cross examination. Now, what are the questions which can be put during cross examination? Firstly, leading questions can be put under section 142-43 of the evidence that then the questions under section 146. Impeaching the you see testing the veracity of the witness who is what is his position and impeaching the credit 155 of the evidence that. If a witness is hostile and if after all this grilling by declaring him unfavorable you see it is a Supreme Court has cautioned many a times that it is not very justified to put the tag of hostile witness. It is simply the process of lawsuits that questions which can be put during the cross examination may be permitted to be put to a witness of the party was called the witness. So, even if after such examination. If there is a truth in the statement, if it inspires confidence, then that part of the statement can be accepted by the court can be relied upon by the court which is found to be trustworthy. Meaning, thereby that wholesome rejection of the testimony of hostile witness is neither contemplated nor stipulated anything. But then, because by the very tenor because the witness has come to say something and he's deposing something contrary and the party who has called the witness has sought the permission of the court to challenge his testimony. So, little extra caution is always necessary before acting upon the testimony of such a witness. Bhanu Pratap says, what do you mean by leading question and what are the examples? Yeah. Now, leading question section 141 defines leading question. And then it says that leading questions are not permitted in examination in chief, except when the fact is undisputed or admitted or introduced. But a leading question is a tool in the hand of the cross examiner, because it puts the witness in such a situation so that he thinks that everything is known to the lawyer who is cross examining me. Now, leading question is a question which leads the witness to a specific answer. So, I say that whether you reside in particular locality of Allahabad, yes, whether you were at home at 1030pm on that particular day, yes. Did you heard some cries coming from the road? Yes. And did you see some persons stabbing the victim? Yes. And you see that the one person was wearing the white trousers and a blue shirt and another one this. Yes. So now, what the witness is doing is simply saying yes, yes, yes, yes, yes. He is being led. And here lies a great danger that this witness may be tutored, may be advised to say yes to certain questions and not know to certain other questions. And definitely this way of answering may not be in accordance with what we say fear trial process, because this is not fair. If you lead the witness on all the points then his testimony becomes where you see totally ineffective, has no value in the eyes of Allah. So that is, I think I am clear that what is leading question. A leading question is a question which has the answer to the question within it. And a clever witness or a witness who has been beforehand advised to react or respond in a particular manner can find out that answer from the question itself. But then if the question is that at what time you reach the spot. So now, two things are there. The time is not suggested. But what is suggested that he reached at this point. So here it should start that ultimately what happened. If the witness say that after just hearing a lot of noise, I reached the spot, then the question may be at what time. So you cannot suggest or you cannot assume that he reached the spot. Let it be stated in so many words by the witness that he reached the spot. So this is the tenor and the quality of the leading questions. If an investigating officer died before deposing evidence, what can be taken for evidence of the hostile witness and other part of the evidence by the IU? Yeah, yeah. So if the investigating officer has died before deposing the court, then in the process of investigation, so many other witnesses are generally associated. Now, those witness suppose these are the part of the arrest. There are witnesses of arrest. Disclosure statements recorded under section 27 of the evidence that seizure of the articles from the implementing articles from the witnesses. Now you always there are some other witnesses available. If those witnesses don't support, then it is something nothing can be done. But then as well as the statement recorded by the by the IO. That is statement under section 161 of the CRPC. And that has that is that is required to be used, particularly by the defense. So, so defense has the defense has proved what was required that this a to a or B to B or C to C, and to formally bring it on record what is necessary that the person who is convergent with the signature of the investigating officer has to be called as a witness and he will prove that this is in the handwriting of the such and such officer or it bears the signature of such and such officer. That will provide sufficient proof in that. In the same case, which two persons are minor and two are major. What happens to the evidence who had already given the evidence before the session court and died before giving evidence before the juvenile justice court. Now the question, as you understand is that there are four persons to be tried for a particular offense to our minor, meaning thereby they are juvenile to be tried by the juvenile justice world and to our major and to be tried before the regular court. So now the testimony of the regular court cannot as such can be because both are separate proceedings and independent. Now, one is the inquiry, that is not trying what is being conducted for the juvenile justice board is a inquiry with regard to that particular offense. And what is being done before the sessions court or the magistrate court is a trial. So that evidence cannot be used, particularly to just arrive at the final conclusions, but many a times it happens that the statement of a witness who deposed in one manner before the sessions court and is deposing altogether in a different manner before the juvenile court or vice versa. That is a previous statement of a witness recorded in a judicial proceeding and that can always be used to corroborate or contradict. Rania says, like you're just shared, you have read your date that you know justice board would only inquire. So what is the procedure under the juvenile justice board. Now juvenile justice board the procedure is very simple. Firstly, the it is informal, but then witnesses are produced, and they are examined and they are cross examined because unless the testimony of a witness is tested on the cross examination, it is no evidence in the eyes of law. So the procedure is informal, but then ultimately, when it comes to the determination of the truth, then the process of examination in chief and cross examination has to be gone through. This is by the answer he says that let's assume the when the incident occurred that the witness was minor, but with the flux of time he becomes major. Yeah, make any difference. As per the law which is prevailing in our country, you see, there was a decision in the case of Arnaud Das by a bench headed by Honorable Justice R. C. Lahoti. And in that case, it was it was said that the, the, the weather person has to be to be tried before a juvenile court or before a regular court has to be decided on the basis of his is when he is coming or is produced before the court. But then that was that was a decision to my my personal view that was very much on logical lines. Because ultimately, you see, there is a what what we we seek to achieve is a trial for a person who is of tender years. Now, if the person himself or herself is not of the tender years, then what is the fun in trying him or her before a juvenile justice board, which is which is there to assure that the children are not just put to almost at par with the criminals of violence is so suppose it a child commits some has some and some offense at the age of 14 years, and he is able to escape from the law for 20 years. So now, at 34 he is arrested, apprehended. Now you see that at 34 he should be tried in the juvenile justice board, but he is being tried, because that is the law for life. That is the law for length. And that is the final interpretation given by honorable the apex court of the country that he should be tried before the juvenile because the age of juvenileity has to be determined on the date of the commission of the maybe whatever be the logic. So in that case, even if he is apprehended after 30 years you see there are cases. I think a couple of weeks ago I just came across a news that the person accused of murder was apprehended after 25 years. And he committed the offense when he was around 20 years. So you see at 45 he is apprehended. Now he has to be tried because the law of limitation doesn't allow him to escape. Suppose if he was only 14 years at that time and after 25 he becomes now 39 years old. So now 39 years old person being tried with the juveniles in the juvenile justice board is simply very, very little to my personal view very politely put it is not very logical. This is what Sharma he says, what do you mean by impeaching the evidence? What do you mean by impeaching the evidence of the witness? Impeaching. Impeaching. Now it is not the evidence which is impeached, it is the credit of the witness which is impeached. Impeaching means putting a question mark to the credibility of a person. Well, I impeach you. I impeach you means I raise a question with regard to what you say. So there are methods given in the Indian evidence set to impeach the credit of a witness. So that is very much there by confronting him from the previous statement by demonstrating that he has been bribed. That by demonstrating that he has been influenced some offer has been given to him. And these are the methods to impeach the credit of a witness. And many times they are very successful because unless the court is very sure that the witness is of a very sterling value, very reliable, his or her testimony cannot be accepted and used in a mechanical manner. So it is impeaching the credit of a witness is a powerful tool given by the Indian evidence set in the hands of the adversary to bring the reality before the court with regard to the credit of that witness, the reliability of that witness. This is by, what do you say? Santosh says, how do you see the veracity of a child witness making a statement? Our veracity of a child witness. You see, there are two things with regard to the child witness. One is the competency of the child witness. Now competency of the child witness has to be determined as per what we find in section 118 of the evidence act, whether he has the capacity to understand the nature of question put to him. And secondly, he has the rational capacity to answer that question. Now to ascertain the capacity the court or the judge is required to put some 7, 8, 10 questions, so as to determine that whether the child is having that capacity. Once the capacity is there, the child is put to examination in chief and to test the veracity of the witness always it is followed by cross examination. So in cross examination, the defense can elicit certain very important and pertinent facts, which can go to impeach the credit of the witness or to discredit a child witness. So suppose in cross examination, the question is raised that, oh, in the morning, such and such person told you that you have to depose before the court in this and this manner. And if he says yes, then you see, it simply demonstrated that he was influenced. But if the answer is yes, I was asked that I have to depose before the court in a very, very truthful manner, and I have to depose with regard to the incident, and that cannot be the that we cannot say that he has been influenced in that very case. This question is, there is a trial one is a minor and one is a major. Yes. How does the magistrate work on that, in respect of the two accused. You see magistrate has no business with a minor. The matter has to be dealt with by the juvenile justice board. The movement magistrate comes to know that the person standing before him accused of a crime is a juvenile. Then matter cell force with be sent to the juvenile justice board without any further action on the part of the magistrate. And the major person he has to face the trial as per the as per the procedure laid down in the court of criminal procedure. The next question he's automatically flown in the on the YouTube he says that then what happens in respect of juvenile what will be done in his manner. The person magistrate who cannot entertain. Then what will what will be the subsequent proceedings to be occurred there in the proceeding will be that the police shall be advised to produce the the the person who is juvenile before the juvenile justice board. And the juvenile justice board will proceed with the inquiry. In accordance with the procedure prescribed in the JJ act, and will will reach a finding and if the finding is there with regard to the that he or he or he is involved in the commission of the office and whatever consequences are stipulated in the JJ act with regard to the he has to be sent in the observation or whatever it is children home that has to be that the maximum I think confinement is only three years. These are the questions are thank you for sharing your knowledge. It's always a pleasure hearing from you. Thank you. Thank you very much. We hope we remain connected for all these insights from you. Not only the National Academy and the MP people are enriched, but with this, as you rightly said that this invention during the testing times and the discovery of all this has helped us to connect at distant places that we have seen questions coming on the YouTube questions coming on the chat. Right. And I am in Chandigarh, you are in Madhya Pradesh people from all over India. Yes. In fact, I have received so many. No, it was it was really a wonderful opportunity to just share my views and share my understanding of law. I don't say what right or wrong or perfect or imperfect what is my my understanding of the relevant provisions of law and that I shared with the with the esteemed participants who are connected online in this webinar, and it has really been a matter of privilege. I would like to extend my thanks to all the other participants, and I'm also very, very thankful to you for providing me this wonderful platform this wonderful opportunity, actually, which, which gave me an opportunity to refresh myself, first of all, and then to communicate with such a wonderful audience. Thank you. Thank you very much. It's always a pleasure connecting with you. Friends, at 6pm, we will have the session by former judge from Punjab and Haryana revenue law in respect of partition proceedings, though that session will be in Punjabi.