A.P. JUDICIARY. ELURU. Date:

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1 A.P. JUDICIARY 1 SRI N.TUKARAMJI, Principal District Judge, West Godavari, DISTRICT COURT, ELURU, ELURU. Date: To Sri K.Siva Prasad garu, Officer on Special Duty, High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh Sir, Sub:- Workshops to be conducted at each of the Districts once in three months for the Judicial Officers Workshop-II scheduled on Submission of detailed minutes and report Regarding. Ref: 1) Hon ble High Court s letter in ROC.No.5-WS/2015-RR dated directing to conduct workshops every 3 months. 2) Hon ble High Court s letter in ROC.No.5-WS/2015- R(R)/OSD dated enclosing calendar and subjects for the workshops and directing to prepare the panel of resource persons and furnish the same to the High Court. 3) Hon ble High Court s Circular in ROC.No.2704/SO/2015 dated directing to take consent of Hon ble Administrative Judge for inviting resource persons. <<>> I have the Honour to humbly submit that the Workshop-II was successfully conducted on at the District Court complex, West Godavari, Eluru. I am herewith submitting a detailed report highlighting the important aspects that had fallen for discussion: PRE-WORKSHOP EXERCISE: The Nodal Officer - cum FAC/ Prl. District Judge, West Godavari, Eluru, nominated the II Additional District Judge, West Godavari, Eluru, to assist him in conducting Workshop-II. After obtaining prior permission from the Hon ble Administrative Judge Sri P.V. Sanjay Kumar garu, respected Sri P. Mohan Rao, Sri N.V.S Talpa Sayee, and Sri Mangari Rajender Retired District Judges, and Sri C.S. Raghu Raman, Professor in Pendekanti Law College, Hyderabad were chosen as Resource Persons for Workshop-II with their consent. Letters were addressed to the

2 2 Resource Persons requesting them to inform details of their arrival so as to make necessary arrangements for their transport and accommodation. Four Judicial Officers, viz., (1) Sri P. Kalyan Rao, Additional District Judge, Narsapur, (2) Sri V. Srinivasa Rao, Senior Civil Judge, Bhimavaram, (3) Sri L. Sridhar, Additional Senior Civil Judge, Eluru, and (4) Sri K. Syam Babu, Additional Junior Civil Judge, Palakol, offered to present papers on the given topics. The material supplied by Sri K.Siva Prasad, Officer on Special Duty, High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh and the papers prepared by the four Judicial Officers on the given subjects were placed in the West Godavari website and requested all the Judicial Officers in the Unit to download the same and submit an acknowledgement to that effect. However, copies of the above material papers were supplied to the Resource Persons. Necessary arrangements for transport of the Resource Persons were made by reserving tickets in the selected trains and also for their accommodation by reserving Guest Houses. In view of the proceedings of the Hon ble High Court in ROC.No.1223/2016-B.Spl in Notification No.394-B.SPL Dated the undersigned took charge of the post of the Principal District Judge, West Godavari, Eluru on In the mean time Sri Mangari Rajender who gave consent to act as resource person for the topic Relevancy and Admissibility of the evidence has expressed his inability to attend the workshop as he has to attend UPSC workshop at New Delhi. On that I requested Sri P. Mohan Rao, retired District Judge who is resource person for the topic Basic Principles and types of Evidence, to act as resource person for the topic Relevancy and Admissibility of the evidence also and he agreed for the same. On morning, the Resource Persons were picked up from the respective places where they were staying and driven to the District Court complex, Eluru.

3 3 Hon ble Sri Justice P.V. Sanjay Kumar, Judge, High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh and the Administrative Judge of West Godavari District reached Eluru during the morning hours of PROCEEDINGS OF WORKSHOP-II Inaugural Session Hon'ble Sri Justice P.V.Sanjay Kumar garu, Administrative Judge, West Godavari District, Eluru, explained, in the Inaugural Session, the history of the Evidence Act right from the period of British Rule in His Lordship stated about the series of Reforms that were brought during different periods. The Hon'ble Judge further explained regarding Act 2 of His Lordship mentioned that the Evidence Act applies to all except Court Martials, and that the Act does not apply to arbitration proceedings. The Hon'ble Judge stated that appreciation of evidence lies at heart and soul in dispensation of justice delivery system. Appreciation of evidence is to test the credibility of witnesses. His Lordship stated that William Blackstone in his commentary on evidence in 1865 felt that it is better that 10 guilty may escape but one innocent should not be punished. The Hon'ble Judge stated that the Hon'ble Supreme Court also in its pronouncements made it clear that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented and no innocent man is made to suffer. Thereafter with His Lordship s permission Smt.S. Sridevi, VIII Additional District Judge, Eluru read out the thought of the day. SESSION - I TOPIC RELEVANCY AND ADMISSIBILITY OF EVIDENCE The session-i began with the paper presentation by Sri V. Srinivasa Rao, Senior Civil Judge, Bhimavaram. His paper comprised 29 pages, out of which he read out some of the important aspects. He began with what is a fact under Section 3 of the Indian Evidence Act, what is 'fact in issue', what is 'relevant

4 4 fact'. He stated what is the relevancy of facts envisaged in Sections 5 to 55 and what is the guiding star in the relevancy of facts. He also stated what is res gestae under Section 6 of the Evidence Act. He cited Gantela Vijayavardhana Rao v. State of A.P. AIR 1996 SC 2791, Ratan Singh v. State of H.P. AIR 1997 SC 768, H.P. Administration v. Om Prakash AIR 1972 SC 975. The Resource Person for the topic is Sri P. Mohana Rao, Retired District Judge. He stated that Section 3 of the Evidence Act defines evidence which includes oral, documentary and electronic evidence. He explained that 'appreciation of evidence' is not defined anywhere; but it means, acceptance or rejection of evidence. He stated what is may presume, shall presume and conclusive evidence. The Resource Person stated about the amendment brought to Section 313 Cr.P.C. by adding sub-section (5) in 2009 and referring to that amended provision, he stated that court may in view of the amendment take the help of Prosecutor and the defence counsel to prepare draft questions. He also stated how to appreciate the documents filed in 313 Cr.P.C. examination. He stated that Section 313(a) Cr.P.C. used the word 'may' while 313(b) used the word 'shall'. He solicited a clarification whether in view of the amendment to Section 313 by addition of sub-section (5), and once the assistance of the Prosecutor and the defence counsel has been taken in preparing the incriminating circumstances appearing against the accused, whether the accused can still contend that he is entitled to acquittal on the ground that some incriminating circumstances were not put to him? He then explained about DNA and when that test can be ordered. He also stated the evidentiary value of such test under Section 4 of the Evidence Act and Section 112 of the Act. He discussed the provisions relating to Electronic Evidence under Section 65-B of the Evidence Act. He stated that such evidence can be accepted as primary evidence.

5 5 Then Sri P. Kalyan Rao, Additional District Judge, brought to the notice a decision reported in Anvar P.V. v. P.K. Basheer 2014 (10) Scale 660. There was discussion on this decision and on the admissibility of electronic records under the provisions of the Indian Evidence Act. The Resource Person posed a question whether there is any provision like Section 325 Cr.P.C., which applies to a Sessions Case before an Assistant Sessions Judge. The question remained unanswered and the Resource Person solicited answer to it. However, he stated that the remedy at present is to write a letter to the concerned District Judge and request him to transfer the case to a competent court to inflict sufficient punishment commensurate with the gravity of offence. The Resource Person cited various decisions while interacting with the Officers. The Hon'ble Administrative Judge, Sri Justice P.V. Sanjay Kumar garu, then posed a question whether it is necessary to ask the Prosecutor or the defence counsel in the preparation of examination under Section 313 Cr.P.C., when that provision used the word 'may'?. The Resource Person opined that tomorrow it may be held by High Courts or the Supreme Court that 'may' is mandatory. Sri N.V.S. Talpa Sayee, Retired District Judge, and Resource Person for the II Session, in the interaction, differed with the view of the Resource Person Sri P. Mohana Rao. The Hon'ble Administrative Judge posed another question whether the written statement contemplated by Section 313 (5) Cr.P.C., has to be given then and there as and when the accused is being examined, or whether the accused can take the assistance of his counsel before answering the questions, and if he can take such assistance, what would be the sanctity to such answers? There was lively and enthusiastic discussion on the topic.

6 6 SESSION-II TOPIC STANDARDS OF PROOF IN CRIMINAL CASES The session-ii commenced with the reading of the paper consisting of 19 pages by Sri K. Syam Babu, Additional Junior Civil Judge, Palakol. He read out the important points in brief. He stated as to what circumstances have to be taken into consideration as regards the standard of proof as to the guilty or innocence of the accused. He stated that the standard of proof in criminal cases is not the same as in civil cases, and extraneous matters should always be kept out of mind, and evidence should be weighed and not counted. How the credibility of a witness should be judged and observation of his demeanor etc. The Resource Person on the topic is Sri N.V.S. Talpa Sayee, Retired District Judge. He first expressed his happiness to participate in the workshop to share his views. He stated that the Evidence Act was amended many times and electronic evidence was introduced. He stated that 'Judgement' is not defined in the Criminal Procedure Code. But, it means, an Order in a trial culminating in conviction or acquittal, vide ILR 1940 Lahore 400. He said that evidence means, information indicating whether something is true and proof means evidence proving that something is true. He opined that Part I case diary should be sent under Section 172 Cr.P.C. to Court by police. He referred to the decision in BHAGWANT SINGH V/S COMMISSIONER OF POLICE, DELHI AIR 1983 SC 826. He stated that where two views are possible in a criminal case, the one which is favourable to accused must be taken. He cited HARENDRA NARAIN SINGH V/S STATE OF BIHAR AIR 1991 SC He then stated about DNA test. He emphasiszed that the sample must be properly collected and preserved by police and the Laboratory should properly conduct test. He stated that accused has no right to file documents at the time of charges and he can file documents during trial. Prosecution should not suppress

7 7 any material favourable to the accused. He has referred to some decisions in his discussion on the topic. SESSION-III BASIC PRINCIPLES & TYPES OF EVIDENCE The session-iii began with the paper presentation by Sri P. Kalyan Rao, Additional District Judge, Narasapur. Out of the 20 pages of his paper on the topic, he read out the most important aspects in the topic. He stated that the different forms of evidence are; oral evidence, documentary evidence, primary evidence, secondary evidence, real evidence, direct evidence, hearsay evidence, judicial evidence, non-judicial evidence etc. He stated about the admissibility of electronic evidence and introduction of various amendments to check the rising threats to banking sector, credit card frauds, cyber crime, cyber forensic and cyber warfare. He also referred to various decisions. The Resource Person Sri P. Mohana Rao, Retired District Judge, dealt with the topic in his own way in question and answer mode and made the session quite lively and interactive. He stated what is double presumption. It is the presumption of innocence of an accused doubled by his acquittal. He questioned whether extra-judicial confession to unknown person is admissible, and if so, what is the duty of the prosecution? He answered that such confession is admissible, but prosecution must place evidence as to what made the accused to make confession to such unknown person. The Resource Person referred to the decisions of the Hon'ble Apex Court in respect of the reliability of the dying declarations made with 80%, 90% and 100% burns. Those decisions are, AIR 1998 SC 1534 (80%), AIR 1992 SC 2186 (99%), AIR 2015 SC 1495 (100%). He referred to the decision in (2008) 8 Supreme 719 as regards the effect of multiple dying declarations. He questioned whether an FIR can be treated as a dying declaration, and he answered that it can be treated so. He referred to the decisions in AIR 1976 SC 2199 and AIR 2003 SC 4670 on this aspect. He stated that the disturbance between inquest and post-mortem report is not fatal, as laid down in

8 8 MUNSHI PRASAD V/S STATE OF BIHAR AIR 2001 SC Whether identification of the accused in darkness can be taken into consideration, is one of his questions and in this respect he cited STATE OF MADHYA PRADESH V/S MADAN (2008) 10 SCC 615. There was interaction between the participants and the Resource Person and inter se interaction between the participants. The Hon'ble Administrative Judge thanked the Resource Persons by saying that some persons are born teachers and Mr. P. Mohana Rao is a born teacher. SESSION - IV TOPIC: BURDERN OF PROOF VIS-a-VIS ONUS OF PROOF. PRESUMPTIONS, PROVED, NOT PROVED, DISPROVED In this last session of the Workshop, Sri L. Sridhar, Additional Senior Civil Judge, Eluru, presented a paper consisting of 22 pages on 'Burden of proof', and he read out the summary of his paper. He referred to the decisions in Anil Rishi v. Gurbaksh Singh AIR 2006 SC 1971, R.V.E. Venkatachala Gounder v. Arulmigu Viswesswara Swami & V.P. Temple JT 2004 (6) SC 442, to name a few. The Resource Person on the topic is Sri C.S. Raghu Raman, Professor, Pendekanti Law College, Hyderabad. He stated that the purpose of Presumptions is twofold: (1) where certain facts cannot be proved and it is impossible to prove such facts by direct evidence, (2) reduce the burden of judiciary by application of presumptions under different provisions. He stated that to raise presumptions, certain basic facts have to be established. He further stated that presumptions have retrospective operation and applicable to pending cases too, vide MANDVI CO-OP BANK LTD V/S NIMESH B THAKORE (2010) 3 scc 83. Sri C.S. Raghu Raman stated that under Section 4 of the Evidence Act, court 'may presume' whenever it is provided, whereas court 'shall presume' whenever it is directed, which means in the former, it is a discretion to the court to draw presumption while in the latter it is direction to the court to draw

9 9 presumption. He mostly dealt with the Negotiable Instruments Act with reference to the presumptions provided in the Act and also the Evidence Act. He distinguished the differences between the negotiable instruments Bill of Exchange, Pronote and Cheque and the mandatory presumptions applicable to those instruments under Section 118 of the Negotiable Instruments Act. He referred to decisions, some of which are: (1) BHARAT BARREL AND DRUM MANUFACTURING COMPANY V/S AMINCHAND PYARELAL 1999 (3) SCC 35, KAMLESH KUMAR V/S STATE OF BIHAR & ANR 2014 (2) SCC 424. He stated that in KAMLESH KUMAR's case, the Hon'ble Apex Court held that since from the date of oral information received by the complainant from the Bank regarding the dishonour of the cheque, the complaint was not filed within 30 days, the complaint was quashed. He also touched the aspect of DNA test and the presumption under Section 112 of the Evidence Act and how non-access by the husband can be proved. He quoted the decisions in KANTI DEVI V/S POSHI RAM AIR 2001 SC The Hon'ble Administrative Judge stated that having heard all the sessions, His Lordship felt that a lot of responsibility is thrust upon Officers to apply law in each case with reference to its facts. His Lordship emphasized that before a matter is decided, it is necessary to look at the provision though it has been seen 100 times earlier, and every time one reads the provision it will give another colour. His Lordship exhorted to observe punctuations such as comma (,), semi-colon (;) and full-stop (.). His Lordship suggested the Judicial Officers to cultivate this practice, which is very very important especially in criminal cases. Then, His Lordship by referring to the discussion of Sri N.V.S. Talpa Sayee in the morning, on two views in a criminal case, felt that in cases where two views are possible, it may be verified if one fact outweighs the other thereby there may not be possibility of two views. His Lordship then recalled the views expressed by Sri P. Mohana Rao in the III Session on the evidentiary value of confessions to unknown persons by an accused. The Hon'ble Administrative

10 10 Judge said that such confessions cannot straightaway be discharged and they can be explained why confession to such unknown person was made. The Hon'ble Judge suggested the book 'Appreciation of Evidence' by Justice K.N. Basha of Madras High Court. His Lordship concluded by saying that it is the Judge who should ultimately decide the issue before him by applying all the relevant provisions. His Lordship recalled Blackstone's dicta Better 10 guilty be escaped than one innocent be punished'. Finally, Sri L. Sridhar, Additional Senior Civil Judge, Eluru, proposed vote of thanks. The Workshop came to an end at 5.30 p.m. POST WORKSHOP SESSION Transport facility was provided to the Resource Persons from the District Court complex, Eluru, to the places of their stay and after dinner, they left for their destinations. Hon ble Sri Justice P.V. Sanjay Kumar, Judge, High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh and Administrative Judge of West Godavari District, left Eluru for Hyderabad on at about 5.00 A.M. Dis.No Dated : Yours Faithfully, SD/- N.TUKARAMJI, PRL. DISTRICT JUDGE, W.G., ELURU.