 And as they say that the best of the cases are sometimes lost because of the poor leading of the evidence and vice versa. Sometimes a bad case is one because of the good craftiness of the evidence as to how it has been like how the examination process examination etc has been done. To understand these facets, we have requested Honourable Justice Roshan Dalvi, a former judge of Bombay High Court, who as usual have been kind enough to accept to our invite. And we all know that our sessions have always been insightful, enriching and always gives a deep memories to be embedded in the mind. Without taking much time, I would request Justice Roshan Dalvi to take things forward in respect of the evidence and thank you once again for sharing your knowledge. Good evening friends and Vikas. It's nice to be with you. Mr. Sirvai had said that a trial lawyer is a complete lawyer. And this was even though he was not a trial lawyer. Now how is that so? Because a trial lawyer has to not only argue but also to lead evidence. And there are certain notions amongst trial lawyers or other amongst all the lawyers relating to trials. One of the things is that a trial means oral evidence. Whether or not you have oral evidence to lead, unless you lead with oral evidence, a trial cannot be complete. Now that is wrong. Now under the CPC, there are many provisions which often on we use. For example, if you want to amend the pleadings, we use order 6 rule 17. If you want rejection of the plaint, we use order 7 rule 11 etc etc. But somehow people don't realize that even order 18 rule 4 or rather entire order 18, like rule 1, may or may not be used. Of course in most of the matters, it will be required because there is oral evidence to be led. But if there is no oral evidence, if there is evidence but not evidence which is required to be led as evidence, then what happens? So it's good to understand what is that kind of evidence that you require to lead? What is evidence in the first place? And then we go to the kinds of evidence, the types of evidence, the persons who have to lead evidence and how we lead all of those evidence. So if you give me a minute, I will share it presently with you. Okay, now what is it? I'm just saying, when you give me the stop, just give. Yeah. Just a moment. Okay, first of all therefore, we say what is evidence? Evidence is a statement of disputed facts. So evidence is not an essay. It is not a book. It is not a poem. It is not even an article. It is just a statement of disputed facts. Now therefore, what are the facts in the case? They're also of two types, disputed and admitted. I will do this. I'll do this. Now aside from the disputed facts, there are in every pleading some kind of admitted facts. Admitted facts come up on the pleadings, come up in any of the affidavits of the parties, come up in any of the documents of the parties and all of these facts admitted and disputed have to be considered for framing issues and then for leading evidence. But once there are admitted facts and they are recorded a very salutary provision under order 10 rule one of the CPC, those admitted facts don't have to be proved. And because they don't have to be proved, they don't have to be recorded by way of evidence. They have to be just recorded by the court. What is the other thing that we don't have to include in the evidence? The submissions. The submissions of the parties come at the stage of only the arguments and they don't have to be in the evidence at all. There are statements of law. They are not a part of the evidence. Of course, we find at least in Bombay we find a whole lot of evidence running into hundreds of pages containing admitted facts, admitted documents, things. Now, when we see the evidence, what types of evidence right in the beginning, the fundamentals of evidence? One is oral. Oral evidence is the evidence that a party who has seen something says a party who has touched something says and a party who has heard something states. That is under section 69 and 60. But while the party speaks about oral evidence and gives that evidence of whatever has happened, like for example, the execution of a document. The document thereafter gets proved, which is documentary evidence and which we'll come to later. In the oral evidence, a very strong corner is of the witness accounts, eye witness accounts. Now, we in India till now give a lot of importance to eye witness accounts, especially in criminal trials, because somebody has seen what has happened and when he comes and states it, subject to the credibility of the witness that is accepted. And if it is corroborated by yet another witness or so, it is accepted even better. But there's been a lot of research in the West on eye witness accounts. And they've come to the conclusion that they are not at all the best of evidence. And therefore, their forensic evidence or documentary evidence always holds better. And they have had so many cases retried and so many persons who have been convicted and who have been sentenced, who have been released thereafter. Now in Harvard, they did a very good study, which you will find in the invisible gorilla, a very good book. And also in thinking fast, thinking slow. These are two non-fictions and they speak about eye witness accounts. Now, there was one study done where there were two teams throwing ball. The participants were asked to see where is the ball and who wins. They were black and white. In between in the game, one big gorilla comes onto the stage with his breast and walks away. So many participants reported that they had never seen the gorilla. Now this was a gorilla, but what they saw was the balls. How many balls were there and where were the balls going? Because that was the subject matter of that witness account, which they were asked to see. Now, let us fast forward to a court proceeding. Let us say for example, a sexual offense. A rape. A victim is giving evidence. She is traumatized. She recalls that incident which is itself a trauma. We call it secondary victimization. She gives evidence before the court after a lot many years. She thinks only about what has happened to her. She will not know, not remember and not think about whatever was in that room or wherever that unfortunate incident took place. Now, when we are seeing eyewitness accounts and when we are going to ask questions about what was the color of that ball and where were you sleeping and how many inches away from the ball were you or any such things. Those cannot be the answers of a truthful witness. Of a witness who has only seen what has happened to her and there is no other witness to witness that incident. There is further research and that research shows that there is something called the misinformation effect. Now a witness who is a truthful witness and who wants to depose but when time passes by and that is what happens in our system generally by the time we depose in court there is a lot of other information that gets into the brain waves and that remains there and the witness begins to think that that is right. Now they did a very interesting study of an accident that took place and they asked the persons from different angles who actually were at the site of the accident and the persons started describing which was almost immediately after the accident what that person was wearing, what the person who came fast was doing and all of those things. There were differences in the accounts of all of these witnesses and then they gave a little lead. They said were you at the traffic signal and the traffic signal was on, on means going and there were witnesses who improved their witness accounts by saying that they were there when it was red. Now there was no traffic signal there at all. So this is what Elizabeth Lofton who got the Medox Prize of 2015 says is the misinformation effect and that effect she says legitimately comes into eyewitness accounts and therefore why because people have been seeing the accident. They will depose correctly about the accident but they want to make the truthful story better and therefore when they are led and misinformed they get led away. So eyewitness accounts are also now considered no good in Western Jewish students. Now we go further to documentary evidence. This is our oral evidence that we lead so much importance on. Then there is documentary evidence. There are documents which will naturally take precedence over the oral evidence if of course it is contradicting the oral evidence or the oral evidence contradicts the documents. Now what kinds of documents do we have? We have primary documents and secondary documents. Now this primary evidence of documents under section 62 and 64 is the direct oral evidence of how the document came to be. Now this direct oral evidence may prove the entire document that is called the truth of the contents of the document. Less than that are only the contents of the document and less than that is only the signature of the executant of the document. So the author of the document when he comes and says that I have executed this document at this place with this person in this kind of surroundings and yes this document is the correct document. It is a full proof direct oral evidence of the proof of the contents of the document. Secondary evidence is when this document is either in the possession of somebody else you call upon him to produce it. He does not produce it. You produce a copy of the document and you say this is that copy. Now it is for you to prove that it is exactly that copy of course but when that document comes because the notice to produce is not answered that document can be considered by the court. It is secondary. It is not primary but it is secondary produced because the original was not produced. Suppose that original is in the possession of that same person but it has been lost. It has been destroyed say in a fire in a flood or whatever. Then how does he prove that document? He proves that document by secondary evidence of the contents of the document that he remembers or by a mechanical process of having copies of that document. Now this is proof under section 65 and if it is a copy of the original document it is approved secondary evidence. If it is a copy of the copy of the document which we now have because there are so many Xerox copies everywhere and you pick up just anyone and say this is that document. No, that is not secondary evidence. Then we go to the kinds of these documents. One are public documents. Now must we prove public documents? What are public documents? Public documents are the records of public offices even judicial proceedings becomes a kind of a public document. It is a judicial procedure. Now because these documents contain a lot of material of so many people and they are in bulk you cannot call an officer of the government always to lead evidence to prove that document which is in his possession. And therefore certified copies of public records becomes the secondary evidence and the secondary acceptable evidence in court. Now let us say for example there is a birth certificate of the registry of births. The register is a very cumbersome document and you can't call upon that person to produce it and how many times will the officer go to various courts? Certified copy has a presumption under section 76. Presumption of its correctness that when a certified copy is correctly issued by the correct authority the court will take it in. Now is there any need to lead evidence on this? No. There are lawyers who want to put in a witness to say that I applied for the certified copy. I got the certified copy and here it is. It's completely redundant. Certified copies can be just tender across the counter because these are public documents of which there is a presumption of its correctness. But then there are private documents under section 75. All documents which are not public are private. All documents between private parties are private and all other documents are then public. But when there are private documents nobody knows about the documents except those two parties and therefore one of the parties would have to come to the court and lead direct oral evidence of the contents of that private document. So suppose there is an agreement between two parties it can be produced, the full agreement can be proved only by the author of that document. The author would be one of the parties to that document and he says how it has come to be and that he has signed. That is a private document. Now let's consider a little difference in how these documents can be taken into evidence. Public documents you just show. For example, there's a birth certificate but there is a school leaving certificate to prove the same thing, the birth of the child. Quite often in criminal cases, especially in cases relating to the JJ Act, FOXO Act, etc. We require to show the age of the victim or the age of the accused. Now certified copies of public record of the birth is full proof, no question at all. But now under the special legislation even private documents are allowed if they are seen to be reliable. Actually how will a private document be reliable? If it is a school leaving certificate, it is a private document. The school leaving certificate is issued by the headmistress of the school. The headmistress has to come and say that this is the correct document issued by my school. When she will be cross examined she will be asked how do you know, how do you remember this has happened 12 years ago. She will have to get her register of the school to show the admissions of the children and in the admission when you write the date of birth and that comes into the school records thereafter it is taken to be the correct date of birth. But only after it is proved by leading evidence. A birth certificate issued by the registry will be proved without leading evidence. So that is the distinction which must be drawn. Then comes the admissibility of documents. A real bone of contention in most of the civil matters. How can you see the admissibility of documents is actually a very simple thing. You take up all the documents and you see which one is admissible or not from the affidavit of evidence which is now fine on record which is the affidavit of examination in chief. One of course is the direct evidence of the author etc. You have the proof of the contents of the document the proof of the signature of the document in that you will get thereafter the receipt of certain letters. Now there may be a document like an agreement but there may be an agreement also by way of letters and correspondence. There would be a chain of correspondence. One party writing a letter to another to another one denying the contents and writing something else rejoining denying the contents of the denier. Now what is the position of this? The fact remains that these documents are there because you have replied to these documents. Nobody who replies to the documents can say that there is no such document. Therefore it gets admitted in evidence. Admission in evidence is quite different from the proof of the documents but unless it is admitted in evidence it can thereafter not be used in evidence and proved in evidence. Therefore whenever there is a chain of correspondence right from the early cases of Justice Bhagwati etc the chain of correspondence was considered as enough for admission. The receipt of the letter Biswanath's case right from 1978 is our leading authority and which says that as soon as a letter is received the letter is there it must be admitted. The proof of the contents of the document may not be proved. Naturally because if a party denies the contents you can't admit the contents. It goes without saying it doesn't even have to be stated but we of course always state it. So this must be a subtle distinction. As soon as there is a receipt of a letter or a correspondence or an email it goes into evidence as an admissible document. Chain of correspondence all of them go in together. Then there is secondary evidence again. Now how do you lead secondary evidence of copies of documents of copies of the copies of the documents which is not secondary evidence and the certified copies of public documents which I just told you about. Now the types of facts and documents that are in our system relevant and irrelevant we would know which is a relevant fact if we know the facts of the case I would say. Anything to prove any of the facts of the case in short is a relevant fact. Anything which is made to scandalize a witness, harass a witness which is just to delay and bind time are all mostly irrelevant documents. Irrelevant documents cannot be given in evidence and the court would refuse to take them. The commissioners if they record evidence of course it goes in because they cannot refuse. Then the admissible and inadmissible documents. Now for example there is an agreement but the parties to the agreement do not come and say that we have executed this agreement. Somebody else who wants to rely upon the document wants to say that this document has been executed by so and so. Sorry that becomes inadmissible at that moment. It cannot be taken in evidence. If there is a voucher or a bill of some person the person who has issued the bill has to come to court to tell the court that I have issued this bill in the normal course of the conduct of my business and it is a correct bill. This is how I issue bills. It would be cross-examined. But so soon as he gives that evidence the document becomes admissible. If a party who has just received the bill and who wants to prove the expenses of the bill wants to rely upon that bill that I have received it cannot be admissible at that stage. It is only the author of that document who would have to prove the contents of the document. Now the types of documents. We know about the private and public that we have done. Now we also have electronic documents. Under section 65A and B we know how electronic documents have to be proved. Electronic documents come out of an electronic system. It is out of a computer. It is put in a printer. It is scanned. It is taken out, et cetera. Therefore it requires the certification that we all know about. But this is for private electronic documents. But there are so many public electronic documents now. All income records are now public electronic documents. But that certificates, et cetera, et cetera public electronic documents. How do you prove them? Any officer at any given time can issue that. So it comes under the digital signature or the scan signature of that officer. As soon as that officer goes on leave or is transferred or whatever, the same document if you require a certified copy thereafter is issued by another officer. That doesn't mean that the document is not correct. The contents of the document are certified by that officer to be correct. And when the officer certifies it, it being a public record must be taken in. Therefore a question arose in one of my matters as to when there is an electronic document but an electronic public document. Should the public officer come to give evidence? And I said no, the public officer cannot give evidence even if there are two copies issued at different times bearing two different signatures of the authorities because they are primarily public documents. But what kind of public documents? I don't manual or electronic. And they happen to be electronic. Then there's a separate set of documents which are important in certain matters which are attestable documents. Documents which require attestation of two witnesses. A will has to be attested by at least two witnesses. And at least one witness must come and depose as to how that will was executed. If he cannot depose, if he has forgotten, if he dies, then somebody else must come and depose as to the signature of that person, the handwriting of that person, the knowledge of what that person was and the attestable document is then proved by the signature being verified. Now a mortgage will has to be signed by two witnesses. A sale deed has to be signed by two witnesses. A gift deed has to be signed by this way. Therefore one of the witnesses would then be material unless of course it's a registered document and it goes in as a registered document which is a public record. Now once we are dealing with these facts and documents, oral and documentary evidence, presumption of facts becomes very material for what not to leave. Court has to presume certain facts under section 114 of the Evidence Act. Which facts would the court presume? Receipt of money, extremely important. In all of the matters where monies have gone into the bank account, there's nothing more required to be shown except the bank account. Why? Because there is a presumption that if it has gone into your bank account and you have utilized the monies, it is your money. You have to pay tax on it. You have to give credit to the creditors for it. You have to pay off your debts from it or whatever that has to be done. So receipt of money becomes extremely important in most of the matters. Bills of exchange also, but they are in only those matters. Judicial and official acts. Now official acts of all public authorities and the acts of judicial officers, like the orders that they pass, et cetera, there is a presumption as to their correctness if a certified copy is issued. And therefore when a certified copy is called for and issued, computerized or otherwise, it has to be only tended across the bank. There is no need to leave any evidence on it. It goes in record. Then there are documents in the course of business. Those documents are essentially private documents. They may be bank account books, government loss account, journal entries, et cetera. These are kept in the normal course of the business of that person. Once that person deposes that these are my documents and shows a series of those documents and they are in the course of business. They become not only admissible, but there is a presumption of their correctness, that this is how it came in. Bills, for example, if there is an evidence that bills have been brought in and this is the way we enter them in the records, all of the bills that come in that matter between those parties come on record because they are in the course of business. And there is a presumption of the correctness. Then evidence which is not produced. Suppose you are called upon to produce evidence and you don't produce, you always talk of adverse inference that adverse inference is because of the presumption that if you are called upon to produce and you don't produce, then if you produce, it would have gone against you. That is a presumption. Similarly, when a witness does not answer questions a witness has to answer all relevant questions. He cannot say that I will not answer because it will discriminate me in some other matter. There is a specific provision under 132 for that. So if the witness does not answer, there can be an adverse inference that if he had answered, it would have gone against him. Therefore, there is that presumption of fact. The document in the possession of the obligate, of the obligator, when there's an obligator and an obligator, the document remains in the possession. There's a proof. There's a first presumption that since this document is in his possession, he may be in possession. Yes, he would be. All these are presumptions which are rebuttable and they can be rebutted by leading evidence. Then there are presumptions as to documents. Certified copies of public records which I told you there's a presumption of correctness. For example, municipal records, judicial records, government printed books, etc. Electronic records and signatures under 85B and 85C, there is a presumption if they are there for five years. So we have got documents 90 years old and the section 90. And under section 85, there is a presumption that electronic records would be correct if they are kept for five years. Powers of attorney under 85, if there is a power of attorney, there is a presumption that it was so executed and the power was given. Documents 30 years old under section 90, they are presumed to be correct. Electronic records, five years old. Now, when these documents for which there are those presumptions in law are brought or relied upon by a party, do they require to lead oral evidence? No. They have to be tendered across the bar except perhaps a document 30 years old because except if it is admitted that it's 30 years old or it is so clear that it is far, far more than 30 years old, it would not be taken on record as a proved document. But once it is shown to be 30 years old and that would be by oral evidence, then it would come to be proved. But the power of attorney, for example, can be just tendered across the bar, there is no need to lead oral evidence on that. When the production, how will you produce these documents? These are under the specific provisions, production of documents when there is a summons to a witness. So witness produces the document. Does the document get proved because it is produced? No. The contents of the document don't get proved. The fact that the document is produced, it's brought on record. Then the contents would have to be proved by all the ways that we have already said depending upon what kind of document that is. The document produced must be given in evidence if the party produces it, producing it, wants to be given. Now once you call upon a party, the party produces the document, then you say, I don't want that document because it goes against me. That party will say, you called upon me to produce, now it will come in evidence. Then it doesn't have to be further proved. It is taken in evidence because it is produced by the party. A document which is refused to be produced cannot be used by such party without consent order. So if he refuses to produce that document and then it transpires that it goes in his favor, it must be taken to be, it must be by consent of the other side and then it goes in. Courts power to order production. Now this is a very wide power. Many a times courts would realize that certain documents are left out. And of course, lawyers generally get most of them on record and ask them to produce. But at any time, the court can call upon an order production of any document. For example, income tax records, a matter is going on and it is realized that maybe tax is not paid or whatever. And it would be an aspect to determine whether a particular party speaks the truth or not, but court will say produce income tax records even though the parties have not relied upon it. There is no need to lead evidence that those documents will have to be simplicity produced and they are taken on record and market experts. Now because we have oral evidence and documentary evidence, which evidence gains precedence? Under section 91, exclusion of oral evidence by documentary evidence is in the evidence act. So if there is an agreement and an agreement doesn't have to be in a by way of a paper, an agreement can be seen from the correspondence or from in whichever mode that it could be by somebody saying something and not denying. And if an agreement is made out and that is in writing, then any other oral evidence which refutes that writing cannot be accepted. It would be excluded. In fact, such evidence should not be led because that evidence is of a lesser variety, you can say then the documentary evidence which would get precedence. And therefore what we generally say is that documentary evidence prevails over oral evidence. Now when there is documentary evidence, suppose everything can be decided on documentary evidence, would there be any need to lead oral evidence? Absolutely not. The usual notion that you must first give some introduction, then write some essay, then put some evidence, even though ultimately it will be of no use whatsoever, is a very unsound practice. I had a matter very interesting between a brother and a sister. What happened was that there was father, mother, brother, sister. The father died in 1948 or so. The mother died in 1989. The brother and sister were there. The sister applies for one foot of the land which was ancestral property. Now the father and the son were obviously only the co-personals. This was an ancestral property. All these are admitted facts that these are the dates of death, these are the parties before the court and that these were ancestral lands and they were growing rice and whatever. Now when the sister applied, the brother refuted, what we had to see was where that claim begins. In 1948, the Hindu women's right to property act was in force of 1937. When the father died, the son became the only co-personal because he was the co-personal with the father. But his mother, who was the Hindu widow, she got possession of that property, whatever property that the father owned as the co-personal under section 3 of that act of 1937. She continued in possession and she was cultivating rice. She died in 1989 by which time the Hindu women's right to property act was repealed by section 14 of the Hindu succession act. Under the Hindu succession act, whatever property the woman is in possession of becomes her absolute property. So in 1956, this half share of the mother, though she was not a co-person, though she could not ask for partition, she continued to remain in possession until 1956 and thereafter she became an absolute owner. Therefore, when she became an absolute owner, when she died, the daughter said that I want half of that property and therefore she said in the ancestral lands, I want one fourth. Now all these facts were admitted facts. Parties had gone into the revenue accounts, revenue records and all that they had and they were relying upon them which are public records. I had taken all of those documents. Nothing was required to be done except the question of law. I said there is no oral evidence at all required. You argue and I will decide. They went to the High Court and the High Court said record evidence. I recorded evidence as a civil court judge as the session says that I was mercifully two page, one page of both the plaintiff and the defendant. They did not say anything other than this much, which was on record. The facts which were admitted were recorded. The documents which were admitted were taken on record. The remainder was the question of law to be decided. I gave the judgment. I didn't rely upon the evidence which I recorded on the High Court Instruction. And thereafter the parties settled. The brother gave the sister, I'm told, one fourth of their estate. But I mentioned about this case in great detail in my book also. And this is what generally happens. Now if there is a labor dispute, for example, let us say between the capital and labor. Now some of the suits come to the civil court and therefore evidence is required. They don't go into the labor or industrial court. Why is that evidence required? Why did they come to the civil court? One is that there may be a strike which will be illegal. There may be a lockout which will be illegal or legal. There may be some kind of damage, et cetera. Now there is a fundamental right to strike. You can strike but you cannot damage the property. So if there is a damage, you have to prove the damage. Aside from that, you have to prove nothing. If there is no damage, you don't have to prove. You have to grant an injunction that you have to only strike. Yes, you can strike and you cannot strike in this form. The suit comes to an end. There is no need for oral evidence. Let us take some other suit, for example. If there is a suit that a party says that I am in possession and my possession must be protected until the defendant follows due process of law. The defendant files a suit. What happens? The earlier suit becomes instructuous. This is the due process of law. So the first suit was under section 6 of the specific relief act. The second suit is under section 5 of the specific relief act. That will only have to go on and the title will then have to be seen. Until the title is seen, the injunction whatever interim order or so must remain and there is no need to leave any oral evidence in that suit. So this is how oral and documentary evidence would have to be actually considered as a fine lawyer. And there is no need to just go on recording without thinking in all matters. Now the burden of proof is important for recording evidence and therefore I am just referring to it. Section 101 says the burden of proof on whom it lies, etc. 102. The most salutary section in this chapter, 106. And on that depends a lot of evidence. Facts within the special knowledge. What do we say best evidence? Who has got the best evidence will produce it. This is the best evidence. The person who is in possession of some facts to his knowledge must prove those facts and that evidence would have to be led whether oral or documentary depending upon that fact. You can't say he will do it, she will do it. Whoever is in special knowledge will do it. And of course then owners in possession and birth certificate and all that is different. Then comes the stages of evidence. Examination in chief. Mercifully we are now out of the fray of examination in chief. Otherwise whether this question is a leading question or not was all the time debated in courts. When the answer is yes or no, then that you are yourself providing it would be a leading question. Now the examination in chief is given under order 18 rule 4 by way of an affidavit. And therefore this anomaly goes and the affidavit of examination in chief becomes the examination in chief. Now it is not that the affidavit of examination in chief can have leading questions but it doesn't matter that it has because whatever are the facts stated in that are accepted by the courts subject to whatever is the cross examination. And of course even in this there is a lot of redundant stuff put in so much so that sometimes we say and especially in the arbitrations I tell them that if in the claim and in the respond the SOD that is a statement of defense to the claim. If you have filed and said everything which is very detailed there is no need to file an affidavit of evidence at all. You can just submit yourself to cross examination. So that entire procedure sometimes really goes by the board. If of course oral evidence is required in that arbitration. And there is the judgment of the division bench of the Bombay High Court in 2006 Bombay 167 I think where we have said that even in the suit that procedure can be followed because rather than say that certain evidence can be redacted instead of that is best to accept it and go ahead with it. So when there are pleadings and when there is examination in chief but you don't have to say anything extra which you actually can and must if the pleadings are precise and concise then the evidence only will have to show how or why or when whatever were the facts that transpired. But that doesn't happen generally because everything is put in the pleadings and in that case affidavit of examination in chief can be the pleadings themselves. Then comes the cross examination. That we will have to deal with separately also but the cross examination will be a more vast thing and the other side will be able to put whatever are reasonable grounds for which any questions are asked etc. which will come to separately section by section. But this cross examination can be recorded by the court or the arbitral tribunal. In arbitration of course we don't follow court commissioners but under order 18 rule 4 of the CPC court commissioners can now record the cross examination. Now this is the only provision in the CPC or rather in the entire trial which can be outsourced under the law and therefore the more it is outsourced the better in two ways. One is that young lawyers have a nice line of profession to come up as trial lawyers and then trial judges because it's a very fine training ground instead of going with a senior and doing nothing you sit down and record the evidence once you are writing down or even dictating on the computer it goes into the mind better of the person who is recording. The anomaly is that why it is generally derided is that the commissioner does not have the power to consider the admissibility of the court. Admissibility is considered earlier and the commissioner cannot even consider the objection to the questions in the cross examination. So all the questions would have to be recorded. Now when you are recording all the questions and answers it becomes very cumbersome reading it. If there is a narration of the recording then it becomes easier to read the facts and I find no reason why a commissioner should not record the evidence by way of a narration. I was told when I was an arbitrator that most of the arbitrators don't even record the narration and I said I will never record question and answer I am not your scribe I am your arbitrator and I always record a narration. Now suppose you have to ask a question were you born on 1121 you say yes there is a need to write 1121 and yes I was born on 1121 even a commissioner can do that. Second if there is an objection then generally what happens is that needlessly objections are taken when any kind of evidence is led in cross examination. Two things happen one is good for the witness one is bad for the witness. One is that the witness may really get confused with what the lawyers are saying and forget the question. The second is the witness who may be very sharp may have a chance of thinking looking at something else and improving upon his thoughts. Both of which is not what the cross examination is all about we require the truth to come up on record because we work on the system of the settlement of jayate we don't work on the system of who is a skillful lawyer. So both of these do record the evidence and there is much left to be desired. Then there is re-examination in certain cases to clarify certain facts and if there is re-examination then of course there will be further cross examination on that re-examination. Now what kind of witnesses would give evidence? Witnesses one who will come to give evidence and two witnesses who will only produce documents. If the witness produces a document as I told you the document doesn't get proved the document comes on record it may be even marked that it is a document produced by that witness but the truth of the contents would have to be proved by direct oral evidence of whatever is that document. Which witnesses have to be taken in by the court? First are the parties and then others except of course in certain cases where a party says that I do not want to lead evidence for XYZ reason, court allows and says he will lead evidence in rebuttal which is allowable. So then the evidence of other witnesses would come in first he would lead evidence in rebuttal only after the defendant reads it. But otherwise the parties have to lead evidence first. Now in this there is another very salutary provision which is often forgotten and that is the right to begin. Who will begin the evidence? Forget the arguments who begins that's okay plaintiff and defendant anybody but when the parties have the pleadings on record who will start leading the evidence is very important. If there is a suit for one lack of rupees and the defendant says I have already paid you 50,000 what is this one lack of rupees? The defendant admits that 50,000 is not paid. Now when the defendant says that I have already paid you 50,000 that means that the document has been executed that means he has taken the monies and that means that part payment is only made and not full payment. The defendant then will have to show whether anything else is done or not. I had an interesting case between a husband and a wife. The flat they were really quarrelling a lot. The flat was in the name of the wife. The wife said I am the owner, I am in possession I will not allow you in. The husband said I have bought the flat in the name of the wife. I have paid the consideration. He was the defendant. He said alright the flat is in the name of the wife that is an admitted fact. I recorded that fact. Now I have to see whether you are really the legal owner though on paper she is shown to be the legal owner. Show me that you have paid the consideration. He would then have the right to begin. That case went up to the Supreme Court and he had to lead evidence I was told. So this is the order of witnesses to lead evidence. Now what evidence can be led? Evidence is of relevant facts. For relevant facts there is a duty to answer. Then evidence even cross examination must be on reasonable grounds. Not for just anything. Contents of the document can be proved upon the production of the document. When the document is there and if the document is admitted the contents get proved. You don't have to lead evidence of contents you don't even have to cross examine the contents of the document. Now therefore what evidence not to be led. Very important because a lot of junk goes out in this. Evidence of admitted facts. Evidence of facts of judicial notices is required. That of course but judges would say whether we will take judicial notice or not of certain facts which are actually in the society. Admitted documents which are taken on record because admitted documents don't have to be proved. Contents of the documents. Now if there is a document on record and is an admitted document the contents don't have to be proved. You don't have to ask questions in cross examination or lead evidence to state that this document is of 1121. The document speaks for itself. Interpretation of admitted facts. Now quite often when the admitted facts, witnesses as well as parties come and actually interpret and say that this was meant and that was meant which is not meant to be. Those questions are redundant actually. And of course questions of law cannot come into evidence at all. Questions of law are separate and have to be dealt with separately. Now what cross examination can be led. Previous statements which is generally in criminal law introduction of anything is allowed in cross examination introduction of the witness of facts of a particular incident etc. Then you can have cross examination to test the veracity of the witness. That is very important and a lot of cross examination generally goes into this. Even afterwards you may realize that it was not required but it is given. Now to shake the credit of the witness. A witness is a credible witness up to a point. At a certain point he may become an incredible witness. He will lose his credibility. To shake that credit cross examination can be done. But in sexual offenses you cannot have cross examination of the past conduct and character of the victim. So that is a specific no-no. Then there is corroborative evidence. Now an evidence which can be corroborated by another witness also. Then you have to you can cross examine that witness also on the corroboration aspect and show whatever the other witness has stated that is in the cross examination. Then the cross examination can be for refreshing the memory and that memory can be refreshed by showing documents admitted or disputed, mostly admitted of earlier dates and then you refresh the memory of the witness and ask further questions. Now this is very tricky. Questions in confrontation. There are three provisions of the CPC relating to plaint written statement and both the pleadings. That is an order 7, order 8 and order 13. Now there is a subsection which I have given you the sub-rules. All documents will have to be shown to the other side inspected by the other side, relied upon by that party and proved. But documents which you require to confront the other side, which are not required to prove your case but to disprove the case of the other side. They can be shown in the cross examination without being shown earlier. And that is the real skill of the cross examiner. That is the real thing where the truth comes out which may not otherwise come out. So those are questions and confrontations and quite often lawyers get up and shout and say that no, no, no, this was not in the width of evidence or this I was not given inspection but that is not required. And therefore we have to tell them that no, this is in confrontation and first the witness will have to answer this in confrontation. And quite often these documents become very relevant and very important to find out the truth. Now what not in the cross examination? That also is in our statute. Scandalous and innocent questions know but they generally don't come in civil matters. They come in section offenses. And therefore courts have to be very considerate for the victim not to allow indecent and scandalous questions which certainly are not allowable. Insulting and annoying questions may come in both civil and criminal trials and they cannot be allowed. Irrelevant questions of inadmissible documents also no cross examination but there is a court's power. Court can put any question so in between to clarify or in between when a court sees that a particular lawyer may fall short or anything but the real truth has to be brought on record. The court can ask any question in between in arbitration the tribunal can ask. Courts power to recall and examine witnesses also there. So if a witness is examined cross examine and gone and then later on after examination witnesses the court feels that that particular earlier witness can give some further evidence the court can recall and examine that may be on the application of a party but the court must allow. Now this is what all we lead and then how do we appreciate that evidence is equally important. Oral evidence must be corroborative if it is contradictory if there are two witnesses who say contradictory things we will have to consider that we will appreciate whether that evidence is reliable or not. Documentary evidence once brought on record and proved the document will have to be interpreted and considered and then there is circumstantial evidence. There are sometimes implied contracts for example there are certain things which will show the other facts and circumstances which have taken place. Those circumstantial evidence will be coming on record as the cross examination proceeds of whichever way and they can do this. And that evidence entirely would have to be read as a whole. This is the ambit of what to lead and what not to be. Thank you. Yes ma'am thank you. We can do away with the PPT. Yes. Now what do we do Ruby? We will stop the sharing part. Yes you please stop the sharing part. Thank you. Baba from Bangalore says what are the presumptions of bills during the course of business? Presumption of bills bills of exchange. Yes. There is a presumption under section 114D that bills of exchange drawn in the normal course of business have to be presumed to be correct as a negotiable instrument. So the suit is filed on the bill of exchange and that bill of exchange once shown is taken on record as an admissible document. There is a presumption until it is rebutted. So if the defendant leads evidence to rebut that this bill of exchange was not properly executed or was executed under coercion or whatever then that evidence will prevail. Yes. Here we don't have, I will just check it on the Facebook. Though you explained but he is asking Veera Pishore is a certified copy of primary evidence or before entering certified copy any formalities are required? No not required that was precisely my lecture. Yes. I have a certified copy of a public document you can tender it across the bar and the judge is duty bound to take it on record as a document. Again until it is distributed I had one case where a birth certificate was tendered and the defendant led evidence that this birth certificate has been forged. So then the registrar I think in some place in Punjab somewhere in Amritsar had to be called to Delhi to Bombay and we saw the records and we saw how up to some let's say 1,999 you know up to there there were entries and then instead of going to 2000 by mistake they went to some 2,900 or something like that and then it went on 900 and 1234 and the birth certificate that was brought out was of the of the years between the column numbers in between this. They were not in the record at all. So we took the entire record and came to the conclusion that no there was no birth certificate properly issued. So this is a public record. It was taken in evidence and then it was the presumption was rebutted. I've written about that case also in my book it was a very interesting trial. They would like to know which book you have written so that they connect also. Tangible Justice Okay. That's so far the only one I'm writing the second one. So thank you ma'am for sharing your knowledge and I've seen that a lot of messages are pouring in that the session was quite engaging and in fact for a young lawyer or professional or a student it will give them a new peep in whereas the lawyers who have already done it it was an occasion where they could brush off their and chisel out the things to be a better lawyer for tomorrow. So thank you Justice Roshan Dalvi it was a session quite engaging and quite insightful and to all those friends who have been watching us live on the YouTube, Facebook and on this platform we are thankful to everyone everyone stay safe, stay blessed and for some reasons though we have done 306 I'll be taking some break from the webinars and I can say for this it would be a last webinar for this particular series thank you everyone stay safe.