Ram Ranjan Roy vs Emperor on 4 August, 1914
38. As to the matter of hearsay evidence: it has been already observed that witnesses who gave evidence favourable to the appellant were extensively cross-examined as to other and previous oral statements. Such procedure is with the leave of the Judge permissible under Sections 154 and 155 of the Ordinance (Law of Evidence) 14, of 1895 and it is to be presumed that such leave was obtained. In other cases, as for example in the case of the maid Alpina whose good faith does not seem to have been questioned by the Crown, evidence of what she had said was given apparently without previous cross-examination of the witness as to such statements. This is both undesirable and not permitted by the above sections and it could not be and was not suggested that Section 157 of the same Ordinance applied to make the further hearsay evidence admissible as corroboration. It is said that the state of things above described arose because of a supposed obligation on the prosecution to call every available witness on the principle laid down in such a case as Ram Ranjan Roy v. Emperor (1914) I.L.R. 42 Cal. 422 to the effect that all available eye witnesses should be called by the prosecution even though, as in the case cited, their names were on the list of defence witnesses. Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions; but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. If it does so confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution. Thus, in the present case, the maid Alpina and Dr. S.C. Paul were indispensable Crown witnesses. As to some of the other witnesses, there might have been both less confusion and a fairer trial if, though their names were on the indictment, they had been put into the box to be questioned as to other than formal matters by the defending counsel. As the trial was conducted the result was unhappy. The jury was warned more than once in the Judge's charge that evidence of previous statements of a witness not admitted by the witness to have been made and not adopted by him in his evidence in Court was not evidence of fact. But how ineffective is such a warning when there is present a very extensive mass of hearsay evidence, is shown by what happened here. Not only did medical and other witnesses assume to be facts matters of which there was merely such hearsay evidence and then proceed to found conclusions upon them, but the learned Judge himself in his Charge through forgetfulness, more than once fell into the same error. In these circumstances the appellant's complaint under this head seems to their Lordships to be established in fact.