 Good evening, friends, and it gives us immense pleasure to welcome BG Harindranath and advocate in the Kerala High Court, who is not only a former secretary of the law and the government of Kerala, plus he's a former district and session judge. Though we are connecting with him on our platform for the first time, but it was always a pleasure hearing him on different platforms wherein he has shared his knowledge. The most fascinating fact is that he can share knowledge on different perspectives. He's also at the same time, not only an erudite speaker but also an author, he has written books also. So, taking you from that, we thought why not take a session on an aspect which is not all that well covered the way it should be on different platforms. So, we made a request to him and we ultimately narrowed down to a topic, proof of facts in the context of definition of proof in the evidence act. So much so that one of my close friends said, probably Mr. Chatharath, you have coined the topic with the wrong English pronunciation. I said, no, you have to go deep dive and then you will understand what is the deeper meaning of that. He said that itself gives me an idea to plunge into the topic. It looks interesting and I will log in through the YouTube today. And those who have missed our previous webinars can always log in and like, share and subscribe to the channel of Beyond Law CLC. We are because of speakers like Mr. Chatharath, we have been able to cross more than 500 webinars and we will request sir to take things forward. Over to you, sir. Thank you, Mr. Vikas. Thank you. Now, before I start the session, you know, I had been professor in the National Jewish Academy for a brief period that is between 2000, that is from 2009 and 10. So we had three district judges there, I mean, principal district judges there, two as professors and I was one of the professors. The other professor, he later went back to the judiciary. He became a judge of the Madhya Pradesh High Court, Justice Vedprakash Sharma. Then our only SP Srivastav Ji is still there in the National Jewish Academy as a professor. He was then Registrar Academy. So we had a lot of, we used to interact because one person was from Uttar Pradesh. I was from Kerala, deep south. And then Madhya Pradesh, almost middle of center, I mean, north of center of India, that is Madhya Pradesh, Justice Vedprakash Sharma. So I found one thing that we have a common thread, that is the law of this land. That is the Code of Criminal Procedure, Indian Penal Code, other procedural laws, substantive laws are all the same, there is not much of a difference. And the judicial officers and lawyers think alike in many, on many aspects we think alike. So we could always find a common ground. That is where then I had an opportunity there to edit a small book by Chief Justice U.L. Bhatt. Chief Justice U.L. Bhatt was the judge of the Kerala High Court. Later he became a judge of the Guwahati High Court, Assam. And he became judge of the Madhya Pradesh, Chief Justice of the Madhya Pradesh High Court. He was therefore Chief Justice of two High Courts. And I consider him as one of the living authorities. He is now retired and he is in Bombay. He is one of the living authorities on Evidence Act. And he has written two books, Pannas Lectures on Evidence Act and the other. His first one was Appreciation of Evidence in Criminal Cases. That was an NJA publication, National Judicial Academy publication, which I had the rare privilege to edit. And then Lexis Lexis has published his book, which is called, Relevancy Proof and Evaluation of Evidence in Criminal Cases. Which is the second edition, in fact, this is the second edition, which I had published. I'm sorry, I have edited. Now, my knowledge of this, I studied in the law college. I practiced as a lawyer. I was a district and session judge. I was a director in the Jigarala Judicial Academy. I was law secretary. But I would say so far as the Evidence Act is concerned, I learned from Chief Justice U.L. Bhatt. And a lot of things I learned from on the practical side, as well as the reality. Now, I would share some of my knowledge with you today. Basically, the most important enactment so far as our judicial trials, civil and criminal concern is concerned. It is the Evidence Act. James with James Stephen. In fact, in a way, we were fortunate that James with James Stephen came to India during the late 19th century. He drafted the Criminal Procedure Code, the Contract Act, then the Evidence Act, and many other legislations in India. And so far as the Evidence Act is concerned, it is a locus classic. I would say that Evidence Act is basically not just a rule book. It is based on a philosophy, as well. So before I go to the subtle nuances of evidence definition of proof, I had an opportunity to go to a, this is a very sad story which I'm telling you. We used to go to courts to see what is happening, just to study. We were in National Reviews back then. Not far from Bhopal. We went to a court. I saw a trial going on. They called it trial. It's a sad thing is that when the trial was going on, pardon me, the judge was in his chambers. He would be surprised to hear. Then there they have what is called the deposition writer. She was writing down something. And the cross-examination of a well-dressed person was going on. Two advocates were near this. One was, I was told it was a prosecutor. The other was a defense counsel. There were other accused in the prisoners' dock. People told me they are ROPA. And I asked one person, what is going on here? And they said, they are giving statements. They are SP. I asked them where the judges are. The judges would be sitting in the chamber. See, this is a total failure of a judicial process and trial. You see, when we start the trial, the evidence act says that leading questions should not be put to the witness. If leading questions are put to the witness, it would be worthless. He would be parroting what the prosecutor or the defense counsel is telling. So, chief examination, no leading questions permit. I did not get the citation. There is a judgment by Justice Katie Thomas, where he counted down a number of questions put by the prosecutor. All questions were leading questions. And therefore, it was a discourage of justice. The accused had to be acquitted because nothing came out of the evidence. If you keep on putting leading questions, if you make witnesses around what they have to say, it would become a worthless piece of evidence. In criminal trials, it should never happen. Now, why do we have witness swears in the witness box? That I shall tell the truth. I shall tell only the truth and nothing but the truth. So help me God. Or if he is not a believer, he can, in his own name, take an oath. But the act insists that he should say unallowed truth before the court. Because witnesses are the eyes and ears of the court. So we find out facts from the testimony, primarily from the testimony of the witnesses, who have witnessed the incident. And secondly, we find out the truth from the documents, authentic documents produced before us, which will be basically primary in nature. And there are other subtle rules for when the primary evidence is not there for letting in secondary evidence. All this is channelized. The entire evidence act is channelized to see that truth is always before the court. Now, so what does the fact find as ultimate goal? It is to find out the truth. Then truth is the primary aim of a judicial trial. Truth is, I'm not saying about the metaphysical qualities of truth. Truth about the fact in nature. The most important thing in a judicial trial is fact in issue. If you prove the fact in issue, the right liability or disability necessarily falls. So you have to prove the fact in issue with the aid of only relevant evidence. No other evidence is permissible except relevant evidence. And then fact in issue has to be proved because the truth of the fact in issue has to be proved. So I shall give you a small example. So we all have, most of you must have read or seen the Mahabharata. I'm sorry, Ramayana. Dasarath, Ram's father, he was hunting in the forest. And then he has a sound. A boy was putting a picture and collecting water for his parents from a pond. Dasarath felt that this is some wild animal. So without batting an eyelid, he sent an arrow there. So it hit the child and then he died. And Dasarath rushed to the scene. The child was then gasping for breath. He said, I am my father. Parents are both blind. So you kindly take this picture full of water to my parents. I am anyway dying. So see the question here is, Dasarath was cursed and that is the start of Ramayana. That is why Ram had to go 14 years into the forest here. That is the rest of the story. But the question here is, obviously, if the truth of the fact is that Dasarath had shot the arrow and it had hit the Charaman, the boy. Charaman died also on account of the arrow. Now that does not make it a murder. To make it a murder, see what is required is he should have had the intention to kill Charaman. Now if you look at the second part of the matter, you can clearly see that Dasarath did not know. Dasarath thought that it was an animal. And that is why he sent the arrow so that the animal does not harm any other person. So he had better reasons he had sent the arrow. And he had no intention. So it can't be murder. Then whether it is culpable homicide or not in the modern context, these are all questions. These are all questions of fact, which will be before the trial of the fact. I just stated this example because this is what will catch the mind immediately. When you are telling somebody, if you tell a story, a parable, people will immediately understand what it is all about. Now the fact issue here is whether by shooting the arrow, which caused the death of the boy Charaman, whether Dasarath committed culpable homicide or murder. And then for that you will have evidence. And evidence should be unallowed truth. Your ultimate aim is to find the truth of the fact in issue. Now let us look at the fact before I go to the definition of food. It would be a positive to look at the definition of fact in issue. See fact in issue means and includes every fact from which the existence, non-existence, the nature and extent of the right liability or disability. I am sorry, the existence, the nature, extent of the right liability asserted in this soup or denied necessarily follows. Now suppose you prove the fact in issue, what happens is the right liability or disability, which it will necessarily follow. So the ultimate aim is to prove the fact in issue. It is from the fact in issue that everything follows. And then you have only a relevant evidence to prove the fact in issue. You can only look at the relevant evidence to prove the fact in issue. Now let us see judicial trials. Now this is the difficulty with the webinars. Sometimes the video goes off when you push something, video goes off. Sometimes the sound is sometimes a problem. I always wanted to talk when people are live talk. Now it is possible because the COVID has abated in it. Now this fact in issue has to be proved. So let us look at what is meant by proved in the evidence act. See Stephen has given specific definition for everything. Now if you look at evidence, common parlance evidence may mean a fact, evidence may mean a lot of things. But so far as evidence act is concerned, fact is separately defined, evidence is separately defined, food is separately defined. These are all distinct things. Fact means anything state of things or relation of things and the mental condition which a person can perceive. That is the definition of fact. Evidence is that is the inclusive definition. It includes the testimony of witnesses given in court or documents produced before the court. And then there is the second part of section 16. It says that when the witness speaks about material objects, the court can look into the material objects. These are the small aspects of what we understand as evidence. Now so far as proved is concerned, it has a different meaning in the evidence act. Now the definition we have to very carefully read the definitions. Because this evidence law is based as I told you is based on a philosophy. Nowadays there is a book known as Philosophical Foundations of the Evidence Law. It is not read as a rule book. Because we have in the western countries jury trial and in the other common law jurisdictions, including our country, we have a judge trial. So the judge decides the fact and the law. So far as England and America are concerned, the jury decides the fact. And the judge decides the law and the admissibility relating to these aspects. Therefore, so far as Indian trial is concerned after the Nanaavadi case, see we have abolished the jury trial. We only have the judge. So therefore, everything is decided by the judge admissibility relevance. And of course, the necessarily the fact in issue is arrived at by the judge by looking into the evidence before. Now let us look at the, we have to now understand the definition, what is meant by proof of the evidence act. What is most important is the definition of the given in the evidence act. See in the evidence act, you have to read it very carefully. A fact is said to be proved when after considering the matters before it, the court either believes it to exist or considers its existence so probable that a proven man under the circumstances of particular case act upon the supposition that it exists. So the evidence act is very carefully as delineated. What is meant by proof? See a fact is said to be proved when after considering the matters before it, court considers the matters before it. Why has the frame of this evidence act used the word matters before it? There is a pertinent reason for that. Because matters before it includes evidence, includes circumstantial facts which we call circumstantial evidence that may not fit into the definition of evidence. Then we have what I said second part of the section 60, bringing material objects before the court. Then there will be presumptions. There will be a statutory presumptions and other matters. So all these things are looked into, not just the evidence. That is why the frame of this act did not use the word either evidence or presumption or it said matters before it. Matters includes all these matters. And then after such consideration what happens is the court either believes it to exist. There are materials matters before you. You believe it to exist. How do you believe it to exist? One matter is the witness comes and speaks before you that he was walking. He sought one person, take a knife and stab another person. So then what does it test? The credibility of the witness is tested in cross-examination before the court. So the cross-examination may reveal that this person has some acts to grind against the accused. So we are cautioned. Look at it. Let us tread slowly. Then we find that his faculty is a perception. His eyesight is pretty poor. He saw it at a distance of say for 50 yards or something. And then at the distance of 50 yards if he is not able to just prove that he is not able to make up as to who is that particular person. Then his autopsy faculties that is also tested and therefore we are in doubt. We cannot believe. Then the court believes that either it exists or it does not exist. Likewise, there can be several parts of evidence. Now, second part comes after the belief is come. This is disjunctively used. You see, either believes it to exist or considers its existence. The word use considers its existence so probable that a proven man or under the circumstances of the particular case act upon this supposition that is that it exists. So the fact finder is placed in the position of a proven man and then he should be considering the matters. He should consider it so probable that a proven man or under the circumstances of the case act on the supposition that it exists. Now, let us go to an example. A person is found in possession of this is a presumption. A person is found in possession of stolen properties immediately after the theft. He should either be the thief or he should be the person who is in possession of the stolen articles with the knowledge that it is stolen. There is a possibility that he is innocent. These things came into his possession. So there are three possibilities. The first two possibilities 114 of the evidence act says that this is an inference with the law compels us to make what may pursue. It is either the thief or the person who is in possession. This proven man under the circumstances would act on the supposition that this is what it is because he has not seen the person stealing. There is no direct evidence to show that this person is stolen the matter but nonetheless he is in possession of the stolen articles. So we have explained distinctively two aspects of the matter but you can't dissect it in such a way that second part applies only to there are several examples. It only applies to circumstantial evidence. No, it may apply to direct evidence as well. But distinctively this is being used, believes it to exist and considers its existence so probable that a proven man ought under the circumstances of the case act on the supposition that it exists. Now, two aspects are there believes it to exist and probability. Probability is one of the aspects. Now I shall come to the second aspect of probability which you cannot believe something which is improbable. You can only believe something which is probable or you can act on the supposition that only probable things exist, not improbable things exist. So there is a logical exercise as well as an inferential exercise in this matter. Applying your faculties of perception you come to a finding whether it is acceptable or not. I am not going into all of these decisions because there will be a lot of decisions and I will only say two or three decisions on the point relating to this matter proved. Now, we have gone through the bare minimum of the definitions. Now, we have two kinds of cases which we all come across. One is the criminal case and the other is civil case. Now in a criminal case, evidence section 3 is the same for criminal case as well as the civil case, there is no distinction. But by judicial decisions, one more standard is applied so far as criminal cases are concerned. That is because an innocent person should not go to the jail without solid proof. So they have imposed, imported the principle of beyond a reasonable doubt so far as criminal cases are concerned. Now I shall speak first about the civil cases, not the criminal cases. Now in civil cases, you know that it is a plaintiff who will induce evidence. Plaintiff induces evidence and then plaintiff's evidence on the face of it if it is improbable. There is obviously the defense also may or may not induce evidence. If the defense induces evidence, there is no question of weighing the evidence because if it is a totally improbable evidence with the plaintiff's evidence, you cannot decree a suit in its favor. So the question of weighing the probabilities arises only when the defendant, plaintiff's case is probable. And then the defense induces evidence and then you weigh both. If the defendant's case is also probable, probability is not, then you weigh the possibilities. Then you apply this principle if it is after weighing something which is more probable than the other, you have to accept. Why it is so? Because certainty is impossible in a judicial trial because of the time frame and the trial cannot be opened. It has to end at a particular time. That is one of the reasons why we have the rules of relevancy. You cannot go on exploring things. If you look at the judicial trial and the historical inquiry, if you take a historical inquiry, whether there was Aryan innovation or not in India, then whether Mohan Jadaro and Harappa, the Aryans brought the horses and destroyed them as we had studied in the old textbooks. But now if you look at the recent evidence regarding Gangarhakra and satellite pictures, you find that on the banks of Gangarhakra, Michael Daniel has written a book on that. They say it is the river Saraswati and we have Kali Bangan, Rakhi Gandhi, Lothal, several other cities just like Mohan Jadaro is there. There is no evidence of an innovation. Maybe people have come from the West. They must have come to India. But the innovation theory is not, there is no particular evidence on that. But this inquiry is always open. People go on debating. New evidence will come in. But so far as judicial trials are concerned, you have to give a finding within a time frame. Human life is limited and you cannot have courts endlessly inquiring into these matters. So we curtail the evidence by looking only into relevant evidence. There is one other reason because we should not, the dryer of the fact should not move astray. Therefore, that is why when we look at the definition of proof, it is inbuilt in the definition of proof that you have to find either way after weighing the available evidence which has been lent in by the parties. This is what we called as preponderance of probabilities. Now, in the West, there is something called preponderance of evidence. That is the weight of evidence. More number of witnesses or whatever is produced. That is not preponderance of evidence is different from preponderance of probabilities. You may on the side of the plaintiff only have two witnesses. But these witnesses in the documents produced on the side of the plaintiff will be highly probable. Whereas the documents produced on the side of the defendants and witnesses may be number or more. But it may not be that probable. So when you weigh the probabilities, the plaintiffs, the probability pertaining to the plaintiff's case preponderance over that other defendant's case, then you may disagree in favor of the plaintiff. But that is not the case in the criminal case. That is not the situation in the criminal case. We have broadly gone into the question of preponderance of probabilities in the manner of civil case. Now we come to criminal case. Criminal case, the standard of proof. You all know what burden of proof and what standard of proof is. Burden of proof has two aspects to it. One is that burden of persuasion, which is static, which we call the burden of certain decisions you have to burden of proof. And the second aspect is the evidential burden. The burden to produce evidence, which keeps on the onus of proof, which keeps on shifting during the trial. Now standard of proof is something different. Standard of proof is the standard fixed by law. In American books I have read, there are three aspects. One is clear and convincing proof. The second is beyond the reasonable proof. And third is preponderance of probabilities. Now these are three standards. So far as we are concerned, our courts have only applied these two standards. One is beyond the reasonable doubt and preponderance of probabilities. It is in the domain of civil cases. Now I come to criminal cases, because it's only positive time is there. It's only one hour. So I'll come to criminal case now. Let's look at the standard of proof so far and the amount of evidence required to criminal case. Now it is easy so far as direct evidence is concerned, because as I told you. You can prove one and a half hour also, that's not an issue. Okay. People are receiving it well on the YouTube also. People will not be bored. No, they are receiving it well on the YouTube, I'm saying. Thank you. So now we are back to the criminal case. Now the standard of proof. Standard of proof is pretty important in a criminal case. Criminal case, you know, there are, there is the, mainly we have the direct evidence. And there is a direct evidence that is not much of a difficulty so far as a trial. Fact is concerned. You need only examine the believability of the testimony of the witness or the like DNA tests. In fact, I had a case where there was no direct evidence. There was no direct witnesses on this. The person was killed till he was traveling in a car. What happened? I'll just tell you the story because story, you know, will relieve you of the boredom. No, I was a district judge. Just a place called Banjheri. It is a Malappuram district in northern part of Kerala. I was a district judge there for about one and a half, two years. That is where after that I was transferred and posted as the director of the academy in Kerala, in the high court. Now, this was a case where the superintendent of customs, you know, he had so many problems in his official. So some astrologer told him that if you have this Navaratna ring, if you put it in your ring finger, all the problems will melted. So he went to the jewellery at Calicut. He bought a Navaratna this thing. It is not a very costly thing. Less than one so ring. So he put it in his suitcase and he got inside the car, started driving it. So it was by about 10 o'clock in the outskirts of Malappuram. So the modest operandi of the thieves is that what they do is they throw this egg on the windshield. When the wiper is switched on, he will not be able to see anything. He will stop the car. Some more persons, you know, jumped inside the car. They thought that he had a lot of gold because he had obviously gone to a jewellery. And then in this struggle, this man was well built. He was about more than six feet tall and all that. Healthy person. In this struggle, he died. See, these four accused were arrived. There was no direct evidence. There was only DNA evidence analysis. Then the mobile tower which indicated the conversation between the parties. And then the circumstantial evidence was such that the chain was complete. There was no escape for the criminals. Now, in such a case, it is slightly difficult because there is no direct evidence which I will come to you because in the case of circumstantial evidence, there are small bits of primary evidence, what we call primary evidence. And then cumulatively, this forms the total evidence matters before. Now, if you take the case of direct evidence, if there is an incident, a stabbing incident, a free fight, there will be onlookers. It is simply based on their testimony. And so far as judges are concerned, you know, tryers of fact are concerned, it is easy to evaluate. It is not much of a difficulty. The question is whether beyond a reasonable doubt. It is not beyond the shadow of doubt. These are all wrong expressions. It is beyond a reasonable doubt, not every doubt. In Shivaji Rao Godbe's case, Krishna is very illusively said it is not any doubt which mind is capable of, but it should be a reasonable doubt. So reasonable doubt, it should be beyond a reasonable doubt. So far as direct evidence is concerned where there are eyewitnesses, it is not that difficult to appreciate the evidence. I am saying from my personal experience, it is not that difficult. But when there are chain of circumstances, each when you will have to evaluate, there is a difficulty. But then the standard of proof is beyond a reasonable doubt. Now let us look at, I'll just give you an example. Now there is a, let us imagine a flag burning case. See, there will be direct evidence as well as circumstances. Now you see a person going to the flagpole. Then a burning flag is there. The national flag is burnt because that is an offense. Now his hand is burnt. Nobody has seen who has touched the flag, but his hand is burnt. He was in possession of the burning flag. He was going to the flagpole. People saw him come out. Now these are the circumstances before you. There are several facts in this. One primary fact, that is what we call primary fact. Primary fact is that fact, that is a person walking up to the flag post, coming back from the flag post. Then person holding the burnt flag. And also the fact that is a hands up. These are four primary facts. So this you have to appreciate. Now, MG Agarwal's case, that is a famous case by Chief Justice Ajendra Ghatkar. He says that in the matter of appreciation of circumstantial evidence, which contains several primary facts, the standard of beyond the reasonable doubt is no place. It is placed only ultimately in the guilt of the accused. Now let us look at this. This primary fact, you are taking this, how do you say a person's hand is burnt? It is burnt. So appreciating this fact, that is a very plain and simple thing. Now the question, then the person was holding the flag up. Witnesses said, there is no reason to disbelieve. He has got his faculties of perception are very good. He is a credible witness. He has nothing to against the accused. Thirdly, if a flag was burning, that also there are several witnesses. Now, whether he was responsible for burning the flag, that is a different question. Maybe he had seen the flag burning and he had ran to the flag post and he was trying to dose the fire. That is how his hand got burnt. So this aspect, you consider this only at the end of the trial. After considering all the aspects, which are primary facts are proved. One is, then the standard is a simple standard. That is a usual standard, not the beyond the reasonable doubt. Flag is burning. His hand is burnt. He rushed to the flag post. He came back from the flag post. These four aspects are proved. But then, where do you apply the principle of beyond the reasonable doubt? The principle of beyond the reasonable doubt is applied in the ultimate factor, which is the fact in issue, where he had burned the flag with intention. In my humble opinion, you cannot find that because there is a reasonable doubt in this matter. Maybe he was seeing the flag burning. He is a patriot. He ran there to dose the fire and save the flag from burning. You must have seen this movie, Roja Harvind Swamy. He is lying on his flag. He is such a patriot. He does not want his country's flag to be burnt. There are such people who are hardened patriots. They cannot see this. Maybe he is one such person. Who can say that? Therefore, this principle, as per the decision in MG Agarwal, was a state of Maharashtra. It is a constitutional Benji decision by five judges. It is reported in AIR 1963, page 200. I hope you read this decision. AIR 1963, page 200 is one of the most important decisions in the matter of appreciation of circumstantial evidence. Now, I have just jumped from direct evidence to circumstantial evidence. And about circumstantial evidence, I can point out certain matters. Now, in the matter of appreciation of circumstantial evidence, what is required is that, see, some people say that circumstances do not lie. Witnesses may lie. And therefore, circumstantial evidence is superior. And the witness testimony is inferior. Witnesses may lie. Witnesses may not lie. So far, circumstantial evidence is concerned. There is a possibility that the witnesses may lie in the matter of circumstantial evidence as well. See, they are speaking of one aspect in the chain of circumstances. Maybe that testimony is not true. It is possible. And then there is a fallacy of inference also in the circumstantial evidence. Ultimately, based on this, you make an inference about the chain of circumstances, whether it is fully established. Each circumstance, you see, each circumstance has to be fully established. And then you should form a chain. And it should bind the crime. And there should be no escape. So all circumstances have to be fully established. And then the ultimate guilt has to be proved beyond a reasonable doubt. There is no doubt in the matter of appreciation of circumstantial evidence, chain of circumstances to conclude that the person has committed the crime, which he has alleged. Now, this is... So therefore, you cannot always say that circumstantial evidence is a superior quality than my witness testimony. I mean, direct evidence in certain matters. Now, what is the meaning of... Look at the circumstance. It is this aspect of the matter which many people make mistakes. What is the... What is meant by circumstantial evidence? See, 81 in the word circumstance. It is circum, circle, circum. And stance, it stands. Stance, you know, you know, armstice, which stands. The arms are standing still. Soul stays where the sun is just above your head. Soul stays. Circumstance, likewise, what stands around the crime? Circum is circle. What stands around the crime? It does not directly touch the crime, but it stands around the crime. Now, there are several chains. And ultimately, if all the circumstances, which would be a block in the chain, ultimately, all this makes a complete chain. There is no other inference as possible, other than the inference that the accused is guilty. On the basis, if there is a weak link in the circumstance, and which will not... There is one possibility because of that weak link. It is not fully established. And you cannot find that the accused is committed to crime. So, that is why all the decisions of the Supreme Court on Circumstantial Evidence says that the circumstances, the chain of circumstance, each chain of circumstance, each link should be fully established. And then it should lead to no other inference other than the guilt of the accused. Then alone, in the matter of circumstantial evidence, you can convict the person. Because, you know, there is no direct evidence on the matter. We always, even now, we are depending on the human testimony. There is a lot of literature that human testimony is very much valuable. Now, there is a book, Munsterberg on witness stand by Munsterberg. It was quoted in 1974, Supreme Court by the Supreme Court. See, there was Munsterberg, you know, enacted a play where the main actors had done some crime. And very respectable persons were asked to watch it and then recant it. Most of them made cardinal mistakes. So, there is a theory that not all witness testimony can be accepted as gospel truth. But, you know, we are in a situation where ultimately what is truth is sometimes elusive. But nonetheless, so far as trials are concerned, that is why we are only looking at relevant evidence, only relevant evidence. Now, I have heard of moral convictions. I am totally against these moral convictions, you know, because what is apparent may not be true. Several times you see something which is apparent, which may not be true. The reality must be something else. That is why you should strictly in accordance with the provisions of the Evidence Act alone, you should appreciate evidence and then come to the conclusion that the thing is. Now, I will just take you. I will just cite two or three decisions apart from MG Agarwal's case to understand what is primary fact. So, I have told you, just bear with me for a while. See, primary evidence and primary facts are two different things. You have to bear in mind that aspect also. Now, I have just pointed out the decision in MG Agarwal's case. MG Agarwal's case is later approved in Rasikram versus Jaswant Singh. That is reported in AR-1975, superior vote 667. 667, the very same principle which is reiterated in MG Agarwal stated there. Now, this is what Lord Denning in Miller versus Minister of Pensions has said about the degree of probability in criminal cases. This is very important because you see, he said that Miller versus Minister of Pensions is a very readable decision. This is reported in 472, All England reports 372, where he has said that the degree is well settled. It need not reach certainty because certainty is impossible in judicial trends, but it must carry a high degree of probability. Proof beyond doubt does not mean proof beyond the shadow of reasonable doubt. Denning in the burden resting on the defense observed that the evidence is such that the tribunal says we think it more probable than not. The burden is disturbed, but if the probabilities are equal, it is not. This is what Lord Denning has said regarding the, in Miller versus Minister of Pensions regarding the reasonable doubt. Now, we have one another aspect of the matter we have to consider is, what is American decisions on the question of primary facts and the proof beyond the reasonable doubt. Now, one decision is California people versus Clickin, but this we have extracted in Chief Justice UL, but 11 C proof in the evaluation of evidence in criminal cases, second edition, which you will find at page 216. It says California was given that it is not law that each fact in a chain of circumstances that will establish guilt must be proved beyond reasonable doubt. They are very clear about it. The doctrine of reasonable doubt applies to proof of guilt and not to the establishment of each incident or even inculcating the defendant. The strict standard is not applicable to evidence of criminal acts offered evidentially to show motive intent, etc. This emphasis has been supplied in that decision. Now, you see the doctrine of beyond reasonable doubt applies only to the ultimate fact. It does not apply to. Now, this has been the case in Leland versus Oregon. That is also an English decision. I'm sorry, the American decision which says that the proof beyond reasonable doubt applies only in the matter of proving the guilt to the accused and not to each facts, each primary facts. Now, there are several other decisions, big more on evidence. They have quoted, you must know that there is a 10 volume book by Big More. Big More is one of the greatest thinkers in America on evidence law. Big More on Evidence, that is Peter Diller's edition. That is at volume 9 page 418. You will find this principle reiterated. And the Klickenberg decision is also quoted. Another decision is also quoted at page 420 of the volume 9 of Big More on Evidence, Peter Diller's edition. That is first Indian edition, you will find it in 2008. There is an Indian edition. Now, this is what we have to understand so far as criminal cases are concerned. Now, there is also a decision in re-winship by the US Supreme Court, that is 397 US 358, where also these principles are reiterated and explored. There are other decisions also on the point, on the definition of proof. Now, in Fletcher Mountain, Lord Justice in Hawkins versus Power Tiller's steam coal company, proof does not mean proof to rigid mathematical demonstration, because that is impossible. It must mean such evidence as would induce a reasonable man to conclude a particular conclusion. Then, Justice Katie Thomas in M. Narasimha Rao versus state of Andhra Pradesh has elaborately considered the definition of proof. He said, the word proof need not be understood in the sense, which it is defined in the evidence side, because proof depends upon invisibility of evidence. After reproducing the definition in section 3. This is the definition given to the word proof in the evidence. What is required is a production of such materials on which the court can reasonably act on the supposition that a fact exists. Proof of fact depends on the degree of probability of it having existed. Standard required for reaching such supposition is that of wooden man acting in any important matter concerning this. Narasimha Rao's decision is reported in AIR 2001 Supreme Court 318. Now, Supreme Court in, I have already told you about the decision. Now, you should understand, what we have to understand is there is no absolute certainty so far as civil or criminal trials are concerned. It is a degree of probability which is important. So far as criminal cases are concerned in appreciating evidence, the degree of probability is much higher than in the case of a civil case. Basically, I have taken you to the, we have to, two other things which we have to consider is, these matters is what is meant by standard of proof. See, standard of proof is the degree or level of proof demanded in a specific case, such as beyond the reasonable doubt of components of probability. The probative effect of evidence in civil and criminal cases is not always the same. But in criminal cases, it is different as I have already told you. So far as the definition of proof is concerned, I have spent some time. Basically, I have not given many decisions to you. If we have to discuss something, I am prepared to discuss any aspects. Thank you for being very patient to listen to this. In fact, what I have found out is, if you talk to group of persons for more than 20 to 30 minutes, your attention span goes. And it is always better that you include at the earliest. Thank you very much for listening, very patient. Ask anything because I can. Whether high degree of reasonable doubt results in equitable of criminals? There is nothing known as high degree of doubt. My humble opinion, it is a reasonable doubt. If there is a reasonable doubt in the prosecution evidence, a reasonable doubt, the decisions, the standard of proof does not say high degree of reasonable doubt. Degree is only probability in establishing the evidence, high degree of probability in establishing the evidence. But so far as a reasonable doubt is concerned, if suppose I say that I am here in Kochi, it is raining and in 2018 we had floods. And it is a possibility that in higher ages it is raining like anything. So there is a possibility of flood here. That is a reasonable doubt if it is really raining and the dams are open. It is a reasonable doubt that it will be flooded. But if you are sitting somewhere in Rajasthan desert and somebody says that it is going to be flooded because it is raining in Kerala or so far apart. It is an unreasonable doubt. It is not a reasonable doubt. So reasonable doubt is what a prudent man's reason. So if there is one reasonable doubt in the prosecution evidence, then the person is entitled to it. So far as, yes. Any question is if the party is avoiding the cross examination by taking several measurements, what can be done in such a situation? We have section 309 of the CRBC which insists on day-to-day trial. Let me be, let me, I don't know what is happening now. I don't go to the trial courts. I only practice in the high court because I mean lecturing to all our judicial officers. It is improper on my part to go and address them. Now, we in Kerala, we have something called list system. So we are required to list two criminal cases. Sessions courts are required to at least list two. If it is a 302 case, you have to list two cases and you have to finish them. And then once it is listed, there is a list system. Even for single cases, there is a list system. Sessions also, there is a list system. Once charge is framed and witness summons is issued, witnesses will be brought. And there is no question of adjournment. There is this examining a witness which I have seen in some parts of the country and then examining him in cross examination after one month. That is not possible. It's saying there should be a continuity. PW1 is examined, he will be finished that day itself. PW2 is examined again. So in the criminal trial which I told you, I have examined 60 witnesses. I finished it within 20 days in terms of judgment. There is no question of, we will only take up that particular, Sessions case is there in our court, we will not take up any other case. Rest of the matters are adjourned by notification. Because priority is given to 302 cases. So this 309 should be ensured. And Supreme Court has vary, on several occasions said that this should be ensured. We have to change this system. Because then they get a chance to intimidate the witness. Even if the witness is lying, he gets a chance to improve. His lawyer will tell him, what did you say in first question in the cross examination, he will change it next time when you enter the box. This is not permissible. It should not happen because it will be a travesty of justice. That is what I have told you. One witness was being examined without judge permission before. Thank you for the insights being shared. And we are quite sector-centered people would appreciate it. The fact that people are watching it on the YouTube with such intensity shows that people have actually appreciated it. And tomorrow our session would be on contract law from the practical perspective. That is by Dr. Neelima Barbaray, who has not only revisited Mullah's contract law, but also on the Helsbury Indian version. And she's a former professor from the ILS. And she's also a consultant. So do stay connected with us tomorrow at 5pm. Thank you everyone. Stay blessed and take all the precautions to avoid the COVID, which is on the rise.