 Good evening, friends. And amongst us we have Justice Thalyani who is already a well-known name in India and beyond for his famous judgments while he was in the office and thereafter while giving his opinions and sharing his knowledge on different tangents and platforms has always been well appreciated. And those who have been connected with Beyond Law CLC would remember that we had shared this topic of appreciation of oral evidence which it is an important facet under the law and therefore due to some circumstances it was postponed and now we have that session of how to appreciate the oral evidence. Justice Thalyani during his tenure as a judge gave judgments of far-reaching impact and there are too many judgments to be discussed about but because of his vast experience we would like to understand as to how the oral evidence would be there and today we had requested sir that he should also share his knowledge with some tinge of the mother language that is Hindi etc. Therefore today's session will be slightly different what we have started like yesterday also we did it on drafting that as they say that life is not all salt or pepper but once it is salt and pepper then you enjoy more and once we are on that side when the hair itself shows the salt and pepper then you enjoy life more without taking much time since we know that these are the testing times we can only say that everybody's safe and sound along with healthy and they are taking care as we they're all government guidelines in this aspect because safety begins at home. Over to you sir it's always a pleasure connecting with you sir kindly unmute you. So unmute yourself. Good evening. Are you getting? Good evening to everybody. You see, namaskar. kaafi matlab states mein unki jo maa ke local language hai state language usin mein misliya daalo to mein kaam shuru ho gaya hai toh bhaata saare nae jo adhivakta hain usme takleef ho rahi hai kuch hangre ji mein yaan ko takleef nahi bhi hoti hai toh hindi ya marathi yaan jo bhi language hai on mein unko jata suvida hoti hai. Likin fir bhi kya hai ki abhith tak jo law develop hai apna aur jo case laws hai judgments hai Supreme Court High Court ke toh sabhi angreji mein hai aur angreji mein hi padne padthe hai to angreji se abhi poora naata toh chhuta nahi hai aur chhuta nahi ki koi Nikad Bhavishya mein umid bhi nahi hai toh angreji aur hindi thoda thoda apni mhasha ko lethne huye fir naata thoda jaa sakta hai biri diri sambh ho hai toh aaj jo praias kya hai toh chhuta saab ne hindi aur angreji dono me kya jaa toh mein bhi hoti unka abhinandan karta hoon ki ish prakarka onno ne ek neya proposal rakhha aur main accept kya koi mujhe marathi hindi inglish toh koi problem nahi hai, tin bahasha hai main chhe se bol sakta hoon, lik sakta hoon, toh friends aaj ka jo apna vishaya hai today we have got a subject which is one of the most difficult subjects in criminal trials that is appreciation of oral evidence toh jeseki trial mein evidence se sbse jada important cheez evidence hi hoti hai, ye sabhi vakki log ko maalum hai aur bolni ki joth nahi kyunki charge sheet file hoti hai, charge frame hota hai, bahad me jo evidence ki stage hai wo sbse delicate and that is a very important stage because that decides the fate of the case. There are so many technicalities during the course of trial, recalling of itnes, this, that, whether evidence is admissible or not admissible, but you see the recording of evidence, oral evidence is one of the delicate stages in the criminal trial and appreciation of oral evidence is most delicate thing in the criminal trial because you have a person before you who is telling you what he had seen, what he had seen at the time of incident or panchanama or identification panchanama or the increased panchanama. Now the judge has to decide or the lawyer who is appearing for the prosecution or defense they have to decide to what extent this man is telling toh thought he is lying or he is concealing something or he is partly concealing or he is fully lying. So there are so many such things and there is no straight jacket formula to appreciate oral evidence. So the principles of oral evidence are there and normally we go by those principles, but there cannot be any straight jacket formula for any one type of witness that this type of witness will behave in a this particular manner in the court. So therefore this is the stage for every trial judge to be very very careful and look at the behavior demeanor of the witnesses and to decide as to what is the quality of the evidence he has given. We have various type of evidence in the criminal trial documentary oral then electronic it is also part of documentary evidence we have circumstantial evidence we have expert evidence we have forensic evidence but today our subject is oral evidence because mainly most of the at least offenses against human body in most of the cases the oral evidence is important. There are very very few cases where the case is decided on circumstantial evidence or forensic evidence or circumstantial evidence coupled with forensic evidence. If you see majority of the cases in the case offenses against human body the evidence primarily or mostly is of eyewitnesses or oral evidence in the form of punch witnesses or other witnesses or the persons who had recorded dying declaration the person who records dying declaration also he gives evidence in the court his evidence is oral evidence. So this appreciation of evidence oral evidence is a delicate state I told you as earlier and how to appreciate. Now there are judges prosecutors and defense lawyers. Everybody has his own point of view the prosecutor will present the case in the manner that suits the prosecution that the witness is supporting the prosecution the defense lawyer cross examines the witness in the manner that he tries to demonstrate before the court that witness is lying or his evidence is not reliable. It is for the judge to decide as to whether the evidence of the particular witness after cross examination is to be relied upon or not or it can be partly relied or partly rejected or it can be completely rejected as all of us know that falses you know falses omnibus has no application in Indian courts and there is no rule of law that if for witness you see lies on a particular point then his evidence is to be rejected on almost all points there is no such rule of law. The evidence says it is possible that the judge may accept part of the evidence or he may reject part of and he may reject rest of the evidence. So therefore you see the witnesses normally fall under three categories that is one is fully reliable one is partly reliable one is third is unreliable. So if the witness is fully reliable the question doesn't arise evidence has to be relied upon or there may be a witness who is partly reliable. Now why the witness becomes partly reliable why such witness will say partly he will tell the truth and partly he will lie. The reason is that such type of witnesses are mostly related to the victim or they have got something in their mind. I am sure my evidence will be more accurate if I should say that they have their own own conceptions that are outside the legal conceptions. They give evidence according to their concept and it happens that one comes in front of the truth and the other comes in front of the incomplete truth. So the truth is the truth. It is the work of the judge to separate the truth from the truth. One he called the truth as a lie. So the second part of the work is to reject it. This is not right and this is not in the law. It doesn't fit in the present you see the law in India. Sorry just a minute. Sorry I had to leave this. So we were on that part. So these are three categories of witnesses reliable, unreliable and partly reliable. So keeping that in mind judge, lawyer or prosecutor has to look at the evidence of the witnesses. Now when evidence is being recorded and after recording of evidence when the state of appreciation comes. Now there are three entities who appreciate evidence from their own point of view. First the prosecutor will present a case before the court on the basis of evidence already recorded that this evidence is reliable and the charge framed against the accused has been proved and the defense lawyer will bring about the lacunas in the evidence and he will try to demonstrate before the court that the evidence is not reliable and there are many shortcomings in the evidence which makes the whole evidence unreliable and it is risky to convict the accused on the basis of such unreliable or such scanty or such fragile evidence. Then it is for the judge. Now when we are meeting here some of us may be some of you may be judges, some of you may be lawyers, some of you may be lawyers and they may become judges. So we have to look at the subject from all point of views. Now when appreciation of evidence comes the what are the normally what are the issues which are raised to credit or discredit the evidence. Now the prosecutor raises the issue that there may be some shortcomings in the evidence but those shortcomings do not hurt the prosecution case. They are normal shortcomings and the evidence may be acceptable. Now it is seen that in oral evidence most of the major portion of evidence is of witnesses. Now let us take one category of witnesses that is eyewitnesses. Now eyewitnesses in some cases there is solitary eyewitness. In some cases there are more than one eyewitnesses. Now if there are more than one eyewitnesses if there is solitary eyewitness then you see his evidence whether should be accepted or not that will depend upon his examination chief and cross examination and the rest of the evidence which has come in the form of medical evidence or forensic evidence but when there are multiple eyewitnesses more than one eyewitnesses the issue arises of contradictions omissions inconsistency between the evidence of two witnesses. Now it is seen that my experience shows that there are large number of cases in which the prosecution case is rejected mainly on the ground that there are large number of contradictions and omissions in the evidence of prosecution witnesses and therefore I don't find it safe to rely upon such evidence. I want to reject such evidence and fill it up in ROP. So it has come to be seen that on contradictions and omissions there is a lot of meaning which is given in the court from the defense lawyer and from the judges as well but this situation is gradually changing so it is not right to bank on contradictions and omissions for defense lawyers. They should see the whole case as a broad measure that there are some shortcomings. That time has gone when there are a lot of trials on contradictions and omissions. But now gradually in that there is a difference between the judicial training institutions or the judicial training institutes that I am seeing. So what are contradictions? What is omission? It is also very important to understand every contradiction or omission is not necessarily you see doesn't necessarily hurt the prosecution case. It is established that only material contradiction or omission can be taken into consideration. Now what is material contradiction and omission that depends that differs from case to case. Now you have seen it from 2.5 feet away or 2.5 feet away or 3 feet away. This often happens that a witness said that I have seen this contradiction from 3 meters away. The second witness says that I have seen this contradiction from 7 meters away but both the witnesses also say that we are standing together. Now there is a difference between 3 meters and 7 meters away. So how is it possible that the person who sees it from 3 meters away will not stand with the 7 meters away. But it is not right to take this matter and reject one of their evidence or one of their evidence. Overall you should see that who is the witness, how much he has written, does he understand the meter, how long the meter is, what does he understand. It is possible that if you judge such a witness, you can ask such a witness in the court question and try to find a solution to the 7 and 3 meters problem. Just take the final judgment of the case and take the final judgment of Ruktyur Furuskyopar apni finding day. So this is possible for the judge to ask any question during the course of recording of evidence and get clarification from the witness or try to understand what is the capacity of the witness, what is the background of the witness. So these are the things which are to be borne in mind at the time of appreciation of oral evidence. Of oral evidence, you see, there is possibility of planting of witnesses in the oral evidence. There is tendency amongst police officers to multiply the witnesses. If you are not tired, then there is also, it is seen that some statements are recorded what the witnesses have not said and ultimately those witnesses do not tell these facts in the court or sometimes witnesses out of fear tell the court what is stated in their police statement, though they had not seen that. It happens. There are many such cases. So this is the duty of the judge, prosecutor and defense lawyer to examine the evidence whether the witness has truly given his statement. Now, if the witness in the court gives different evidence as compared to his statement recorded by the police, then the question of contradiction arises. Now, how contradictions are to be proved? How omission is proved? That is not today's subject because if we go into that, Tashildar Singh and all these things, it will take a lot of time and we may not be able to complete the subject within the time fixed by us. Therefore, what is contradiction whether it is proved or not? That is to be seen. What is omission? That is also very minutely junior lawyers should read very deeply what is omission? Omission should be natural that he should have stated but he has not stated before the court or he has not stated before the police. If the witness is describing evidence and there is something which is very, very important and which could not have gone unnoticed from the eyes of witnesses and if that fact witness is not telling, that fact is not found in his police statement. Rest of the things are found and very, very important and prominent thing is not found in his police statement, then that becomes omission key. You did not state so before the police. Now you are stating. Since you omitted to state this fact before the police when the investigation was going on and your statement was recorded. So that you can argue at the time of arguments that this is you see important factor which this man failed to notice though he noticed very minor things. That means this witness is telling lies. What he is telling today in the court is different than his statement recorded by the police so it amounts a material omission. If material thing is omitted by the witness to be stated before the police and now he is stating before the court that means today he is lying. So this witness is not reliable this can be argued. This is the kind of you see the deep study of this law that you can reach to that you see the level where you can understand what is the real omission. Normally it is seen that some lawyers they ask questions bring something on record and then they put a different question which is river which is all together the answer of that question is all together from the first question. Now what lawyers try to demonstrate before the judge is as you see 10 lines before he has stated so now he states this. This is according to me not an omission. This is not an omission you did not state so earlier now you are stating this is not this omission is you see tactfully created by the defense lawyer. Many defense lawyers tactfully create omissions in the evidence so the tactfully created omissions are not natural omissions. This omission should be one which I described you that a very important factor went unnoticed and did not come in the police statement and the witness is now stating before the court that means this witness has been now tutored. Now he is telling something which he had not in fact seen therefore it is there is possibility that he had not seen other part of the evidence but that part should be accepted or not that is again the may differ from case to case but this you see these things are which are to be brought on record in contradictions and omissions. All contradictions are not material because you see we are now after so much of experience on the legal side even if we some see some incident today and we are required to give evidence in the court after you see 6 months, 8 months, 1 year, 2 years or according to our standards after 5 years so it is just not possible to you see narrate what I had stated before the police. Therefore there is bound to be some missing point there is bound to be some contradiction in my evidence and if it is natural it is good enough impact for the prosecution. And then see among certain prosecutors to read this police statement to the witness again and again and again before he enters the witness box and try to bring everything which is there in the statement as verbatim that is also not correct because that judges immediately understand this witness has been tutored by the prosecutor many a times and therefore he is telling everything in the same sequence. How can you tell everything in the same sequence unless you are the statement is read to you for so many times. So this is the stage where the judges, lawyers, defense lawyers and prosecutors have to be careful. The witnesses may be of different nature as I told you some witnesses are honest, they are truthful witnesses but they add something on their own because they feel that if I don't say this then my first statement will not make any sense. So taking this judgment and finding out that this is a bond that he has made with his will or it was already a bond and this is the job of the judge and also prosecutors and defense lawyers are officers of the court and their duty is to assist the court in arriving at truth because what it does is to assist the court because both of them are officers of the court they are part and parcel of the system and therefore it is their duty to assist the court in arriving at truth because what it does Justice is the quest for truth truth truth trust but that there is tendency amongst the relative witnesses and interested witnesses to embroidery, give embroidery to the evidence. They should be a little exaggerated to tell them that they have a habit. They should tell them better so that they get the right punishment. So these are the interested witnesses. I can't reject every evidence of an interested witness only because he is interested witnesses. I am interested in the conviction of the person who has killed my brother. That is natural. How can you say that? You see, why should I have such type of things in my mind? I have and I am bound to have because if my relative is killed, I will have in my mind that the person who has killed my relative must be convicted. And I am one of the witnesses. I am relative of the deceased. I am interested witnesses. Now, my evidence cannot be rejected only because I am relative of the deceased or I am interested witness. How I am interested? Whose evidence you can reject? Who is unnecessarily interested in getting conviction of the accused because he has some enmity with the accused for some or other reason. And he has nothing to do with the case. He has been brought by the police as a witness, taking advantage of the situation that this man anyhow wanted the accused to be sent to the jail. Therefore, he will support the prosecution case. Now, it is for us, the judges, lawyers and prosecutors to find out whether this witness is planted or this interested witness is a real interested witness, a real relative of the victim. So, appreciation of evidence. I am not inclined to accept the evidence of this witness because he is interested or younger brother of the deceased and therefore he is bound to support the prosecution. This type of findings is absolutely wrong finding unless it is supported by some reasons. If his brother then why he is wrongly or falsely supporting the prosecution unless there is a reasoning for that simply because his brother and he is interested in conviction of the accused you cannot reject his evidence. So, this is regarding the interested witnesses and relatives. Then we have police as witnesses. So, we have briefly covered eyewitnesses in the contradictions and omissions, then there are inconsistencies in the evidence of the eyewitnesses. You cannot have the consistent evidence of all the witnesses that depends upon what is the capacity of the witness. There may be a rustic witness who is bold enough to give evidence in the court. And educated person is scared because he knows that there are so many people watching me. If I am wrong then what will they say? Will I be insulted? What will they say about me? There is a person who is more educated in his mind. So, he can say it wrong sometimes. And the path you think is the path but that person can say the truth. So, these eyewitnesses have inconsistencies. Inconsistencies come not because he is illiterate. Sometimes you find more inconsistencies in the evidence of witnesses who are educated who know everything because they are scared. If I commit mistake, what people will say? So, the lawyer is giving wrong evidence. He does not know how to speak in the court. But rustic witness is bold. He will openly, truly tell the court what had been seen by him. So, we have covered that part of the eyewitnesses. Then we have covered the contradictions. What is omission? What is natural omission? What is manipulated omission? And what is material contradiction? What is not material contradiction? Contradictions are bound to be there. Whether it is material, really it goes to the root of the case and really makes the evidence of witness unbelievable. That is to be seen. Only because contradiction is there, you cannot reject the evidence of the witness. So, this part is over. Now, in a criminal trial, you have punch witnesses. You have police officers. So, punch witnesses are also, their evidence is also appreciated in the same manner as if the witnesses or eyewitnesses are there. Now, let us come to the other category of witnesses. That is police witnesses. Now, police witnesses, there may be a police officer who had recorded a fire. There may be a police officer who had recorded some of the statements of eyewitnesses. There may be a police officer who had, who had recorded inquest Panchanamma. There may be a police officer who had recorded spot Panchanamma. So, all these. Now, there is no rule of law that the police officers will, their evidence cannot be relied upon because they are interested in prosecution of the accused. There is no such rule. There is no presumption against the police. Therefore, their evidence is also to be appreciated like any other evidence. We cannot presume because he has recorded a fire. Therefore, you see, he is bound to create such an evidence that he succeeds in detecting the case and filing the charge. There may be some police officers, but then we have to identify such a person, whether he is such type of person or not. Whether he has really created evidence falsely to support the FIR, otherwise his case will go undetected and if his case goes undetected, then his record will be tarnished. You recorded FIR and you could not detect the offense. Now, in police department, these things are there. Like in judiciary, disposal is one of the issues to how many cases you are, you are disposed of in this month. Those who are judges, one Mr. Sri Krishna, I sitting here. So, disposal is one issue where you are, you see the assessment is when your assessment is recorded. Your quality of your judgment of course is there, but disposal is also another issue. In the department also, how many cases were given to you for investigation and how many cases you have detected and you brought them to logical end. So, sometimes some police officers try to create evidence which ultimately fell in the court and if it doesn't fail, then you can see what can be the effect. Wrong person can be convicted. Therefore, evidence, appreciation of evidence of the police officer is also equally important. We cannot blindly believe that the police officer will tell the truth. At the same time, there is no presumption that the police officer will lie. Therefore, the evidence of the police officer should be appreciated at the same level on the same earth. Just like you examine and analyze the evidence of the punch witness, you should analyze the evidence of that punch witness. So, the evidence of the police officer should be analyzed. A police officer must have recorded such a dang declaration. Now, the victim, whether it is a lady or a male or a female, most of the cases are female dowry deaths. So, whether it is a victim or a case of murder, dowry death, or a case of suicide, the person might be facing offence of abatement to commit suicide, dowry death, or murder. Now, there can be a dang declaration in all three cases. Because in all three cases, whether it is a lady expired in 306, there can be a dang declaration, there can be a dang declaration in 304B, there can be a dang declaration in 302B. Now, the dang declaration that the officer is recording, it is very delicate to appreciate the evidence in the court. Because the lady has written what she has said. Now, sometimes what happens is that circumstances are such that the police officer is gharowed by the relatives of the deceased. There are so many things which I cannot say here, which may compel the police officer to create a false dang declaration. Now, you just imagine if a person is convicted on the basis of false dang declaration. There is no law that dang declaration requires corroboration. Therefore, it is possible that the conviction may be arrived at on the basis of only dang declaration. Therefore, very important piece of evidence dang declaration is. If there is a false dang declaration and if it is relied by the trial court, it may end into conviction of the accused. Therefore, the appreciation of evidence of police officer who had recorded dang declaration is very, very, it is to be seen very carefully. Now, normally if the time is available, the police call the executive magistrate to record dang declaration. They take the certificate of medical officer that the lady is in since fit state of giving the statement. Now, there may be cases where there is no time to call the ACM. There is no time to call the doctor or doctor is not available. He has gone to his quarters till the time he comes. The time is only a few minutes, two or three minutes. A lady is able to speak and she is gasping also. So, the police officer will record her statement. Now, there is no law that the statement recorded by police which has become dang declaration after death of the deceased needs to be rejected because he is a police officer. No. Even oral dang declaration given to somebody and he deposing in the court can be a basis for conviction. So, I was telling that the evidence of police officer should be analyzed at the same level on the same earth as it should be done by any other witness. Like a police officer has an interest witness. Sometimes the police officer is interested in conviction. Sometimes he is interested in it. We cannot mention all these things here but you can understand it. You too have the same experience. So, while keeping these things in mind, we have to appreciate the evidence. Because in oral evidence appreciation, a little mistake can affect the outcome of the case in a very bad way. The person who should be punished can leave, the person who should not be punished can go to jail. And you can understand that the person who did not do anything, whose wife committed suicide, is punished by 300 people. And until he is not bailed and he is not acquitted from the appellate court, what will happen to him? So, these things are very deep and seriously thinking. Criminal appreciation of evidence in criminal law is very delicate as compared to appreciation in civil law. You can understand that you are driving passenger train in criminal law. Even if you make a mistake, the person can die. And if you make a mistake in civil court, what will happen? There will be a loss of property. There will be no loss of someone's attention. Therefore, when you are sitting in a criminal court, you have to be careful in both the courts. But this is more delicate according to me. Appreciation of evidence in the criminal court. After this, there is an expert evidence in the criminal court after the police officer. They also have oral evidence. It is of the medical officer. It is of the DNA person. It is of the ballistic person. And a lot of people have their voice identification in the case of anti-corruption, whose voice is recorded. And then he tells that this evidence is the voice of asking for money. And then the record case sample, the specimen voice is available to him. Means the money he asked for, he didn't ask for ROP. So demand is an offence. Acceptance, demand and acceptance both are offences under prevention of corruption. So oral evidence of such people should be done very carefully. We should see what their experience is. How much experience they have. How much experience they have in identification. Have they applied the technique equally? Have they made any mistakes? Have they made any mistakes? Similarly, the oral evidence of the medical officer. You should also analyze the postmortem report that you have in your eyes. Because until the postmortem report is not admitted or exhibited, you cannot read the postmortem report in evidence. Postmortem report is a contemporary document when the postmortem was done. What is evidence is the evidence given by the medical officer in the court. If the defense admits the cause of death, then the matter ends. But if the defense doesn't admit the cause of death and postmortem examination report, then the evidence of medical officer becomes very important in the cases of heart and death. Both. You should also keep in mind the oral evidence of the patient. The heart, the bruise, the contusion, etc. It is very important to learn these things yourself. Only then can we appreciate the evidence of the doctor. Whether it is bruised, contusion, or cut wound from this kind of weapon. So all these things, we, those who are in the system, we must have knowledge of these subjects. Then only you can appreciate the evidence of the expert witnesses. If we don't have the experience of DNA, then how can we appreciate the evidence of DNA? So expert evidence may be just a fingerprint expert or ballistic expert. This opinion is the final manager. It is not opinion evidence. The opinion of a ballistic expert is the final manager. Because you never get a cut wound from another weapon. A bullet shot from another weapon never gets a bullet shot from another weapon when it is examined in front of a microscope. There are two microscopes and two bullets or cartridges are examined. So one bullet fired from X weapon will not tally with the bullet fired from Y weapon. So we must have knowledge. And we must, when the expert witness comes before us, we must be able to get whether what he is telling is based on proper knowledge he has. It is not that he has said, you have written and accepted clearly. Even expert evidence, you can do analysis in it. It is just that the fingerprint expert and ballistic expert, you cannot change their opinion. But the opinion they have made, the procedures they have adopted, they have adopted, they have done it right. Whether the procedure adopted was correct or not. Whether on the basis of it was possible for him to come at a correct conclusion. But as far as the question of handwriting expert, the question of vice identification, you can give your own opinion different. Apart from the opinion of expert opinion, the judge can give his own different opinion. So the opinion expert evidence, there are two types of evidence. One is fingerprint or ballistic is considered final, while handwriting expert evidence is considered final. This opinion is that along with other evidence, this will help you to come to a right conclusion. If you are a judge. This will help you to defend your client. If you are a defense lawyer on the basis of shortcomings in the evidence given by the fingerprint expert, handwriting opinion expert. Because their opinion is magnifying the document. And the handwriting of the specimen or the disputed handwriting is tallyed. You can also see with your own make it eyes. This is one category of evidence where the witnesses come and they give oral evidence in the court. And the judge has to decide whether this oral evidence should be accepted or not. Only because an opinion is given on the basis of opinion exhibited in the court, you cannot just give a finding in this writing becomes a person who is alleged to have forced a document. You have to analyze the evidence of expert whether he has adopted correct method. Whether it was possible for him to come to a right conclusion on the basis of a method adopted by him. After the expert evidence, there is a chance witness who becomes an eyewitness. There is a chance and by chance he has reached here. There is no work for him in that area. So, there is no need for evidence of such witnesses to be appreciated. There is no need for you to go to your house or shop. So how did you reach here? Can you reach anywhere else? If you have come from a house, then there should be an argument that the witness is really a chance witness. Whether he is a rejector or if he had reached here or if he was planted. This is one thing. Then comes an uproar witness. He is accused. He is one of the accused. Now, there are some cases where the police don't get any evidence. Despite a lot of efforts, they don't get any direct evidence. They don't get any circumstantial evidence and there are four accused. Ultimately, police have to take one of the accused as an uproar. So, he is an uproar witness who has turned witness from accused. He is originally accused but he has turned to whom a pardon has been granted by the court under section 306 of CRPC. So, the person in 306 who is given a pardon is given a condition by the magistrate in order. He will tell the truth during the course of trial. And if he doesn't tell the truth, then the prosecutor has the right to tell the court that his pardon may be withdrawn and then he will have to be tied as an accused but separately from other accused. So, if such a witness doesn't have any style and gives a statement, then he will have to see his statement from that point of view. Because in the law section 133 of evidence it says that the accomplice is a competent witness. That witness is competent and he can give evidence. But in our country there is a practice that normally the evidence of uproar should be corroborated by some other evidence, normally. But there is no rule of law that evidence of accomplice must be corroborated. But as a safe precautionary measure we find corroboration. We try to find corroboration. But if the corroboration is not available and evidence of the uproar witness is reliable, then there is no harm, there is no illegality in convicting the accused only on the basis of evidence of uproar. Therefore, if you are a judge, if you are a defense lawyer, if you are a prosecutor, particularly a defense lawyer, then you have to see whether this uproar is, he was granted pardon properly or not. Or some other forces were working behind him. Then you have to see all these things. If the procedure of the uproar is not followed properly, then you can take an objection that the procedure of pardon is not followed properly. So whether that witness should be treated as uproar or not, that will be a questionable thing. That is to be seen. So as I told you, accomplice is a competent witness. The uproar is accomplice. His evidence, he can give evidence in the court. His evidence cannot be rejected only because he was an accomplice. But his evidence normally should not be accepted unless some corroboration is there. Then if the corroboration is there, not there, and if the evidence is reliable, it is safe to base conviction on such evidence of uproar. This is the gist of law of evidence of uproar. So this is about oral evidence. We have today discussed the appreciation. And as I told you, oral evidence is a very delicate thing. The rest is circumstantial evidence. As it is said that circumstances never lie. But an oral evidence person can put you in a circle anytime. So while leaving this circle, judge, lawyer and prosecutor have to be very careful. Because sometimes he is interested in presenting him with that method. Sometimes he is interested in external forces that make him witness and bring him to the court. So all of us who are part of this system, it becomes a duty of all of us to be very careful about these things. So that no miscarriage of justice happens in our hands. Because after being in the miscarriage of justice trial court, you can imagine that the person who has not committed offence, if he is sentenced to life imprisonment and if he doesn't get bail for 2-3 years or till death conclusion of appeal and in appeal he is acquitted. How are you going to compensate him for the period which he has remained in jail? Therefore, the job of the judges, lawyers and prosecutors in the trial court is most important as compared to the job of judges, lawyers and prosecutors in the appellate court. So this is the summary of the appreciation of oral evidence. We can discuss this for days together. But within one hour whatever was possible within for me, I have discussed with you. And as said by Mr. Chhatrat, as he wanted it to be Hindi and Marath in English, so I have completed the practice of Hindi and English. So that the Hindi people get a lot of things and the English people get a lot of things. And I understand that the use of Hindi and English today will be successful. Let's see how it goes. If you have any questions, you can ask me. I will take the questions. I was just seeing that since we go always live on the YouTube, I was seeing that this is one of the best pickup of the webinars. Probably like what we were discussing, that if we speak in Hindi, then we reach a lot of people. And what we say in Hindi, and you will explain everything what is down under the sun. And I don't think that we can get better things. I myself, when I spoke to you, I felt that you will do it in a limited way, but you have taken different spectrums of this thing. So during at least in Chandigarh, we have a cold weather. Yes, you have worn your coat. Yes, and that could be. Even in Bombay, it is a little cold. So I can say that it was a rainbow during these testing times to enjoy the knowledge. So this is by Sandeep Parmar. Should lying witnesses be punished for offense under perjury? Section 340. The inquiry of 340, where are you speaking from? I think he is from Pune, if I recollect, because at the earlier point of time, he used to participate in the webinars. Okay. So the 340 inquiry can be initiated against a person who has committed perjury and what is the material to show that he has committed perjury. That is again for the trial just to decide under the inquiry. And then the trial just can direct his register or the club to file complaint in the court of magistrate for the offenses of giving false evidence in the judicial proceedings. This is by Enrathi. He says, is maximum of false or false omnibus applicable while appreciating a dine declaration? So you see it is not, she is from which place? So actually normally they are not applicable. You see this is not applicable in India. Therefore you see it is not applicable to dine declaration also. Dine declaration also there is possibility. Two possibilities are there. Either the person who is recording, he manipulates the dine declaration or the lady who is normally the presumption is that the person who is dying will not tell lies. Those who have missed it, they can watch your session. We have already done. So therefore that can be, you see, that has to be appreciated like any other evidence. Whether this is manipulated by the person recording it or the lady has tried to, you see, exaggerate certain because she was tortured by her husband and thereafter suppose she commits a suicide. Now there may be a tendency of, you see, after committing a suicide or there may be a possibility. So that possibility has to be examined and that is to be appreciated like any other evidence. Whether this lady is giving a true and correct version of the incident or not. This is Ravi Kajgyap. He is from Karnataka. How Heir Seh witness is appreciated in criminal cases? What is the question? How is Heir Seh witnesses appreciated in criminal law? Heir Seh is rejected. Heir Seh is not acceptable. Heir Seh has no exception. I don't remember if I am not sure. Heir Seh has no exception. Perhaps the Dengh declaration here has the exception of 32 that the lady is not in front of her and the other person is telling her the evidence because the lady has passed away. Or whatever the victim is, the person can be. So the deceased has given his statement. The other person is telling the statement. So this is an exception. Otherwise as a matter of rule here, evidence is to be rejected and there are few exceptions to the Heir Seh rule. Those exceptions are there. That's all. This is Bajjaj Shirdi Krishnan. From where has the theory of proof beyond reasonable doubt in criminal law come into being in India? And secondly, is there a difference between proof beyond reasonable doubt and beyond the shadow of reasonable doubt? The meaning of both the sentences is same. Only you see we go on using different sentences and different language in judgment. Beyond the shadow of doubt, beyond reasonable doubt, this meaning of both the sentences is same. Some people write that it has to be proved beyond reasonable doubt. In other words, it has to be proved beyond the shadow of doubt. So both sentences have the same meaning. All of them have the same meaning. The summary is the same. The doubt that comes in the mind of a judge that there is a little lingering doubt in your mind that this can be wrong. This can be wrong where in the mind of a judge you have to give benefit of doubt. This can be wrong. He is harming you again and again. So you can be right. Because the basis of criminal law is that one person is innocent and one person is guilty. If you go on the cardinal rule then you have to have reasonable doubt again and again. So then it is a case of benefit of doubts. That is the basic difference. Pre-ponderance of probabilities and beyond reasonable doubt. And Sadeep has written that he is a lawyer from Andhra Pradesh. Pre-ponderance of probability is in civil. So that is what I am saying. The subtle difference between civil law and criminal law. Civil law. Beyond reasonable doubt and pre-ponderance of probability there is very little scope in criminal law. No scope like that. Only you have to prove beyond reasonable doubt. Pre-ponderance of probability in departmental enquiry is in civil law. It is in service matter. On that there is a Supreme Court judgment. Where it describes the subtle difference between the service law when they say disciplinary proceedings and under criminal law. How disciplinary proceedings may you can found a person guilty for suppose 354 years committed offense in the office. If the department proceedings, the departmental enquiry officer can give a verdict of guilty but in criminal proceedings maybe the verdict might be different because of the level of evidence which is the degree of evidence which is required to prove a criminal charge is much more heavier than the departmental enquiry. It says Vinita. This is on the YouTube. I wish to know whether it is proper to contradict the punch witness with the reference to the contents recorded in the punch Nama. I don't. Yes. Because it is said that punch Nama is a statement of the witnesses who were present at the time of because punch Nama is not statement of the police officer. Police officer is the only instrument. Punch Nama is a memorandum of the what is seen by the panchas on the spot. Even the test identification parade conducted by a special executive magistrate is a memorandum of what witnesses have seen and what they have stated during the course of test identification parade. It is not memorandum of what the ACM had seen or the police officer had seen. Ush Pandey says let's get a dying declarations and admissions are the exception to the hearsay evidence. Dying declaration and admissions. Yes. Admissions and let's get it. Yes. Yes. Yes. And he only helps us that section 340 is the procedure for section 195. Because here the evidence is given by somebody else than the person. Now the admission may be the admission may be by the accused during the course of 313 of CRPC while his statement is being recorded. So that admission will be different as compared to the admission in the chapter of admissions and confessions. So confession is also recorded by somebody else who gives evidence regarding the confession given by the accused. This is like heard by the magistrate and evidence is given in the court. Now the person who gives the confession before the magistrate under section 164 he doesn't he is not required to tell the court that you see I admit if he admits in trial court matter and there otherwise the special sorry the judicial magistrate who has recorded confession or statement under 164 of CRPC has to give evidence in the court of what he has what was told to him by the accused and the witnesses under 164. Under 164 there can be statement of witness there can be confession of the accused also. This is Comner India on the YouTube. Oral evidence and can it be used as a principle of conspiracy? Yes, yes. And judge Shekhar again says from where is the theory of proof beyond reasonable doubt in criminal law could have come. Now it's very old theory. What we have read from the inception of using criminal jurisprudence this story is there. If you read old books of criminal jurisprudence you will find this story. And this story according to me is mainly based on that only the principle that he beyond reasonable doubt missed the person you are convicting the person in criminal court or you are acquitting the person you are not deciding the property dispute. There are no documents before you in some cases only oral evidence is there. So therefore the beyond reasonable doubt miss or reasonable doubt. It is a matter of common sense also. Forget about the judges or jurisprudence. You take a common prudence of common man. If there is a doubt about the correctness of any evidence. What a common man of you see a common prudence he would say you know this cannot be accepted. So this may be very, very old theory. So I just Googled it. It says in 1780 professor Barbara J. finds that origins of the reasonable doubt standard of 17th century philosophy of reasonable doubt came into being and it says from the middle though it is from the Middle Ages. And it is only the extensive century that in 17th century it was very old. It says in fact it traces even in the BCs when it is traced back to the work of problemata problems connected with justice and injustice. It says it reaches back way back to 340 BC. So I can share I will share the link with Shire Krishna later on. So thank you sir. It was a Sunday delightful food for thought and we will all enjoy that. And this is a last question he says Mahade rain from Bangalore cancer judge closed the cross examination abruptly by giving three chances of cross examination without the lawyer saying no more. Then why should we you see abruptly close the cross examination. This is not fair. This is unfair according to me because fair trial is the fundamental right of the accused. So anything done by the judge which is which amounts to unfairness or which gets a little out about the fair trial or which can we can say that he was not given fair opportunity of defending himself. You see the trial can be asked to be you see the case can be asked to be re-heard. It can be remanded back. That is why any judge should abruptly close the cross examination unless there are strong reasons. Suppose the lawyer is putting same and same question again and again then he can warn him. You know Mr. I am adjoining you please try to amend yourself this is not correct. We are doing the things in court but closing the cross exam you see the accused cannot be punished for the mistake committed by the lawyer. That is the basic thing. The judge has to find out some solution to the problem based upon the circumstances prevailing then there cannot be any definite solution to such problems. Those such problems are to be resolved within the four corners of law by the judge considering the circumstances prevailing there at that time. So thank you sir. The knowledge what you have said it is a tremendous knowledge we will all enjoy that and you have rightly said justice must not only be done but this must be seen to be done. That cardinal principle continues to hold the field and we are all sacrosanct that this principle will continue. Everyone stay safe, stay blessed and if you are not vaccinated do get yourself vaccinated and also propagate this principle so that people can do that for those who have not done it. Thank you. Stay blessed. Thank you. Namaskar.