Saturday, 11 March 2017

When court should permit secondary evidence of missing documents?

BH was called upon to produce several documents in the MMC inquiry. BH produced some of the documents and failed to produce the others. Register IV was produced by BH from the period 23rd April 1987 to 29th May 1987. This was for a period prior to the relevant period in this suit and in that inquiry. The same witness had identified the register produced for the earlier period as the register maintained by the operation sister in the OT in the normal course of the conduct of the hospital. The same register No. IV for the later period which was the relevant period was not produced by BH. BH has conducted an inquiry with regard to the missing documents. BH has instead produced the record of the inquiry. BH has produced certain records including the proceedings in the inquiry and the ultimate report of that inquiry as documents marked Exhibits-Z-1 to Z-7. These are the documents of the hospital produced by itself. None has challenged any of these as the documents of the hospital. Amongst these documents is inquiry conducted by three persons appointed as a Board dated 30th April 1990 instituted by the Executive Director, BH dated 11th April 1990 and the report of the inquiry marked as Exhibits-Z-5 and Z-6. The inquiry which was instituted was upon the report that the operation register maintained by the Senior Assistant of CST pertaining to the period between 13th October 1987 and 17th October 1988 was found missing when the search was conducted in April 1990. The report of the inquiry shows that the registers were kept in an open shelf. No security was provided and when the operation is performed the OT staff is busy. All the OT registers were available except for the above period. All these registers were required everyday. In the past there has been no theft of the operation registers or other documents. Only the relevant register was found missing. The exact date of the loss could not be detected. The conclusion of the inquiry drawn by the board was that the relevant operation register pertaining to the period between 13th October 1987 and 17th October 1988 had been removed from the OT of BH by some one who might be in some way connected/interested in the entries made in that register. It is surprising that BH who had conducted the inquiry well prior to the cross examination of P.W.3 could have objected to the production of the copy of the register. It is not for Defendants 1 and 2 to object the production of this document except for the purpose of not bringing the truth on record, if there being any such objection. They are independent Doctors. They are not concerned with the OT registers. It is for the Plaintiffs to rely upon the register and for the hospital to produce it just as is done with the medical record of the original Plaintiff No. 2, Exhibit-H. One of the registers is produced and the other was not. The Xerox copy of one register, admitted as an admitted document has been marked exhibit. The Xerox copy of the other register has been objected to be marked despite the conclusion that it was missing and a further conclusion that it could have been removed by an interested party. It may be mentioned that this is the most fit case for production of document by secondary evidence. The copies of the OT registers initially produced in the MMC and later found to be missing was marked "X-3 (colly)" for identification. It is surprising that one of the registers has been allowed to be marked Exhibit-Q and the other register has been so resisted for being marked in evidence. That is the register which was missing. When admittedly the original document once produced in evidence before any forum has been found missing a copy of the document must be marked on record as secondary evidence. No party has refuted that the copy of the OT register No. IV is an incorrect and fabricated copy. It has only been contended that because the original register has been missing the copy cannot be marked. This is an absurd contention. That would mean that any original document which is required by the Court to be seen for ascertaining the truth of the case can be got missing by any interested party and its copy earlier legitimately taken out and even used in earlier proceedings cannot be marked as document on record. In fact it is for such documents that the law relating to proof of documents by secondary evidence is specifically enacted.
Suit No. 1101 of 1989
Decided On: 02.09.2011
Padam Chandra Singhi and Ors.
Dr. P.B. Desai and Ors.
Hon'ble Judges/Coram:
R.S. Dalvi, J.
Read full judgment here : click here
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