Validly Recorded Cross-Examination Evidence Can't Be Eschewd But Court Can Assess Its Probative Value During Final Evaluation Of Case: Madras HC

In a recent case, the Madras High Court dismissed the application to eschew the cross-examination evidence of a defendant witness from the proceedings.

The bench comprising Justice S.S. Sundar and Justice A.D. Maria Clete noted that once cross-examination evidence is validly recorded under oath, it cannot be expunged from the proceedings, as the statutory provisions do not permit such an action.

“If a witness has been cross-examined under oath and an objection arises later concerning the interest of the party who cross-examined the witness, questioning its adverseness and the priority of cross-examination, the previously recorded evidence cannot be eschewed. However, the court should assess the probative value of such evidence in the final evaluation of the case.”, the court observed.

The appellant co-defendants in the original suit preferred an application to eschew the 9th defendant's (DW1) cross-examination evidence from the proceedings on the ground that his cross-examination by the 10th defendant didn't align with the defendants' version, and instead supported the plaintiff's case.

Also, the appellants complained about the procedural irregularity that occurred while conducting DW1's cross-examination. The appellants did not raise objections regarding the priority of cross-examination during the proceedings. They only objected after the cross-examination by the 9th defendant was complete.

Referring to Sections 137, and 138 of the Indian Evidence Act, 1872, and corresponding sections of the Bharatiya Sakshya Adhiniyam, 2023, the court held that recorded evidence cannot be expunged unless there is a statutory provision allowing it.

The Court discredited the appellants' contention about the procedural irregularity upon observing that they failed to raise the objection to the recording of DW1's evidence at an appropriate time i.e., during the proceedings.

According to the court, objections about the recorded evidence could not be sustained after the recording of the evidence.

The Court concluded that, as provided under Section 138 of the Evidence Act 1872, (Bharatiya Sakshya Adhiniyam 2023 i.e., Sections 142 and 143 of BSA 2023):

"(i) Only an adverse party is entitled to cross-examine a witness.

(ii) A person whose interests are not adverse to the witness is not entitled to conduct a formal or friendly cross-examination.

(iii) A party with an interest adverse to the witness is entitled to cross-examine the witness, regardless of the array of parties involved; for example, a defendant can cross-examine co-defendants if their interests are adverse to the witness's testimony.

(iv) If parties' interests are adverse in different aspects, the party whose interest is adverse in a specific aspect has priority in cross-examining the witness before the more heavily contesting party proceeds with the cross-examination of the witness.

(v) Any objections regarding the priority of cross-examination of witness and claims that a party should be barred from cross-examining the witness due to non-adverse interests must be raised before evidence is recorded, and the court should decide these issues immediately.

(vi) If a witness has been cross-examined under oath and an objection arises later concerning the interest of the party who cross-examined the witness, questioning its adverseness and the priority of cross-examination, the previously recorded evidence cannot be eschewed. However, the court should assess the probative value of such evidence in the final evaluation of the case."

Resultantly, the application was dismissed with a cost amount of Rs. 10,000/- to be deposited to the Tamil Nadu State Legal Service Authority, High Court, Chennai.

Appearance:

For Appellants : Mr.R.Thiagarajan

For Respondents : Mr.C.Jagadish

Citation: 2024 LiveLaw (Mad) 450

Case Title: S. Nirmala & Ors. v. Shanthi Harikrishnan & Ors., OSA.Nos.187 of 2024

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