Andhra HC (Pre-Telangana)
Somagutta Sivasankara Reddy And Anr. vs Palapandla Chinna Gangappa And Ors. on 23 November, 2001
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER S.B. Sinha, C.J.
1. Cross-examination is a powerful weapon in the hands of adversary. Non-grant of an opportunity to cross-examine a witness may even attract the doctrine of fairness and may be held to be violative of principles of natural justice. (See: Full Bench decision of this Court in K. RAGHURAM BABU v. DG OF RAILWAY PROTECTION FORCE, NEW DELHI ,
2. Whether the said principle has any exception is the question involved in this reference made to this Bench by a learned single Judge of this Court.
3. The civil revision petition is directed against the order passed by the Principal Junior Civil Judge, Kadiri in O.S. No. 132 of 1999 whereby the evidence of PW1, who was examined in chief but was not cross-examined owing to his death, had been ordered to be eschewed from record relying on a decision of Division Bench of this Court in A.P. TOBACCO GROWERS CO-OP. UNION LTD. V. SRI ANJANEYA TOBACCO CO., .
3. The learned single Judge did not concur with the view expressed in A. P. TOBACCO GROWERS CO-OP. UNION LTD. (supra), but agreed with the view expressed in MAHARAJA OF KOLHAPUR v. SUNDARAM AYYAR, AIR 1925 MADRAS 497 and AHMAD ALI v. JOTI PRASAD, AIR [31] 1944 ALL 188 by the Madras and Allahabad High Courts respectively. The learned single Judge found that the question would frequently arise before the trial Courts and therefore the matter is now before us.
4. The following points framed by the learned single Judge were referred for an authoritative pronouncement:
(a) Whether the provisions in Section 33 of the Evidence Act would apply to the question of admissibility of evidence of a witness who has been examined in chief for being used as evidence in the same proceedings?
(b) Whether the fact that the witness whose examination in chief has been recorded was not subjected to cross-examination would render the evidence inadmissible?
Or Whether the fact of the witness having not been cross- examined would merely affect the evidentiary value of the witness?
5. The witness has died after examination in chief. He, therefore, could not be produced for cross-examination. What would be the effect of non-production of witness for examination after the examination in chief is over owing to the death or illness of the concerned witness? It is now well settled that where a witness dies after his examination in chief and before cross examination would depend upon fact of each case. There are cases where despite death, the statements made in the examination in chief had been taken into consideration and there are cases where the same was excluded from consideration.
6. Section 33 of the Evidence Act, 1872 reads thus:
Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.-Evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:
Provided-
that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation.-A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.
7. Thus, the evidence given by a witness, although he had not been cross-examined may be admissible in evidence. However, weight or probative value attached to such evidence would depend upon facts and circumstances of each case. Whether such evidence should be taken or not would depend upon the fact as to how far and to what extent the deposition has been made; Whether the witness has spoken about the relevant facts and the stage of examination in chief is also relevant.
8. Reference in this connection may also be made to MAHARAJA OF KOLHAPUR (supra), MANGAL SEN v. R., AIR 1929 LAHORE 840, SRIKISHUN JHUNJHUNWALLA v. EMPEROR, AIR [33] AIR 1946 PATNA 384, AHMED ALI (supra) and Mt. HORIL KUER v. RAJAB ALI, AIR 1936 PATNA 34.
9. Reference in this connection may also be made to the well-known treatise "Sarkar on Evidence" at page 2170:
The evidence of a witness who could not be subjected to cross-examination due to his death before he could be cross-examined, is admissible in evidence, though the evidentiary value will depend upon the facts and circumstances of case. [Food Inspector v. James N.T., 1998 Cri LJ 3494, 3497 (Ker)]. If the examination is substantially complete and the witness is prevented by death, sickness or other causes (mentioned in s 33) from finishing his testimony, it ought not to be rejected entirely. But if not so far advanced as to be substantially complete, it must be rejected [Diwan v. R, A 1933 L 561]. Deposition of a witness whose cross-examination became impossible can be treated as evidence and the court should carefully see whether there are indications that by a completed cross-examination the testimony was likely to be seriously shaken or his good faith to be successfully impeached [Horil v. Rajab, A 1936 P 34]. In a divorce case, the cross-examination of a witness for the wife who is the uncle of the husband was interrupted to enable the witness to effect a compromise. No compromise was effected. The witness did not turn up thereafter. The husband did not take steps to compel the witness to appear for further cross-examination. The reading of the evidence of this witness cannot be objected, on the ground that the cross-examination is not completed [R v. S, A 1984 (NOC) 145 All].
10. We may also refer to a Division Bench decision of Madras High Court in MAHARAJA OF KOLHAPUR (supra), which after considering various authorities laid down the law as under:
I do not think that the evidence can be rejected as inadmissible, though it is clear that evidence untested by cross-examination on a question like the present can have little value. I need only refer to Tahlor on Evidence, Section 1469 : DAVIES v. OTTY [(1865) 35 Beav. 208 = 5 N.R. 391 = 34 L.J.Ch. 252)], ELIAS v. GRIFFITH [(1877) 46 L.J.Ch. 806)], MAN GOBINDA CHOWDHURI v. SHAHINDIA CHANDRA CHOWDHURI [(1908) 35 Cal. 28)] and DHANU RAM MAHTO v. MURLI MAHTO [(1909) 36 Cal. 566= 13 C.W.N. 525 = 1 I.C. 366 = 11 C.L.J. 150]. There is nothing in the Evidence Act which renders such evidence inadmissible. In ROSI v. PILLAMMA [(1910) 20 M.L.J. 400 = 7 M.L.T. 41 = 5 I.C. 512 = 11 Cr. L.J. 145] it was pointed out that the evidence was admissible though the learned Judges were of opinion that it should not be acted upon. I think the correct rule is that the evidence is admissible but that the weight to be attached to such evidence should depend upon the circumstances of each case and that, though in some cases the Court may act upon it, if there is other evidence on record, its probative value may be very small and may even be disregarded."
11. We respectfully follow the above principles.
12. However the evidence would be inadmissible, if cross-examination was avoided or deliberately prevented. In some cases, however, evidences had not been taken having regard to the fact situation involved therein.
13. In HORILAL v. STATE OF U.P., 1970 [2] SCJ 223, it was held that where a witness died after his evidence was recorded by the committing Magistrate and his deposition was admitted at the session trial, the question of whether the evidence of the investigation officer that it was learnt that the witness had died was sufficient proof of the death was left open by the Supreme Court.
14. In ARABINDA DEY v. THE STATE, it was held that where witness died before the sessions trial begin, his evidence in committing Court was held admissible under this section.
15. In "Murphy on evidence" it is stated:
It seems that where a witness, who has given evidence in chief, becomes unavailable to be cross-examined, his evidence in chief remains admissible, but is unlikely to carry very much weight., 1998 CRL.L.J.3494
16. We may, however, notice in A. P. TOBACCO GROWERS CO-OP. UNION LTD. (supra), the evidence was held to be inadmissible. The said decision, in our opinion, has no application to the facts of the present case inasmuch as therein the witness, PW1, whose evidence was sought to be relied upon was not produced.
17. Section 33 of the Evidence Act, in our opinion, is clear and unambiguous. If a witness is not deliberately produced and/or if the conditions precedent for admissibility of the evidence of a witness as specified in Section 33 are not fulfilled, such evidence, evidently, would not be admissible in evidence. It further appears that in the said case, well known principles of law laid down in several decisions of various High Courts, as noticed hereinbefore, had not been brought to its notice.
18. A similar view has been taken by learned single Judge of the Kerala High Court in FOOD INSPECTOR, THODUPUZHA CIRCLE v. JAMES N.T., 1998 Cri. L.J. 3494
19. We, therefore, are of the opinion that the evidence of a person who has died after examination in chief and as by reason of his death, he could not be produced for cross-examination, although his evidence is admissible in evidence, the weight or probative value thereto would vary from case to case and in a given case may also be disregarded.
20. The reference is answered accordingly.