Examination-In-Chief Of Witness Can't Fasten Liability Unless Opposite Party Is Afforded Opportunity To Cross Examine: Jammu & Kashmir High Court

Upholding the acquittal of a Police officer in a 20 year old rape case, the Jammu and Kashmir and Ladakh High Court has said that examination-in-chief of a witness cannot be taken into consideration to fasten any liability, unless the opposite party is afforded a reasonable opportunity to cross-examine said witness as regards information tendered by him in his examination-in-chief.

"It shall be highly unsafe to consider the chief examination of a witness, who is not subjected to cross examination and court in such circumstances, is left with no option, but to ignore such testimony", a bench of Justice Rajesh Sekhri observed.

The prosecution's case before the trial court revolved around the mother of the prosecutrix, who filed a written report stating that she and her daughter lived as tenants in the house of a police inspector named Ajay Gupta. It was alleged that Gupta forcibly had sexual intercourse with the prosecutrix, accompanied by two other boys.

The complainant further claimed that she reported the incident at a police post and Gupta was charged under Sections 376/201 RPC, and the other accused was charged under Section 376/511 RPC.

Before the trial court, the prosecutrix and the complainant were examined in chief but could not be cross-examined due to the absence of the defence counsel. The respondents later filed an application for recalling the witnesses, which was granted. However, it was discovered that the prosecutrix had passed away and the complainant could not be located. As a result, the trial court closed the prosecution's evidence without the cross-examination of the prosecutrix and the complainant.

The court determined that their testimonies, in the absence of cross-examination, could not be considered as evidence or relied upon for the conviction of the respondents and hence acquitted the accused-respondents.

Challenging the acquittal, the State argued that word ‘evidence’ as defined in Section 3 of the Evidence Act, means and includes all statements which the court permits, or requires to be made before it by witnesses, including the examination-in-chief, cross-examination and re-examination, subject to the permission of the court.

In order to adjudicate upon the matter Justice Sekhri noted that Section 138 of the Evidence Act clearly prescribes that examination of witness includes examination-in-chief and cross-examination and re-examination shall be directed to explain the matters referred to in the cross examination and if new facts are introduced in re-examination, the adverse party may further cross examine upon those fact(s).

"Section 138 enables the opposite party to cross examine a witness as regards information tendered by him in his examination-in-chief and the scope of this provision stands further enlarged by Section 146 of Evidence Act, which permits a witness to be questioned, inter alia, in order to test his veracity", the bench underscored.

Acknowledging the law under Section 33 of the Evidence Act, that the evidence given by a witness in a judicial proceeding is relevant for the purpose of proving, in a later stage of the said proceedings, the truth of facts which it states, when the witness is dead or cannot be found, provided the adverse party had the right and opportunity to cross-examine, the bench observed that it is manifest from the proviso appended to Section 33 that evidence given by a witness, who is dead or cannot be found, is relevant in a later stage of the same judicial proceeding for the purpose of proving the truth of facts which the witness states, only when the affected party had the right and opportunity to cross examine the said witness.

Applying the said position of law to the case at hand the bench observed that the application for cross-examination of the prosecutrix and the complainant was granted, but neither could be cross-examined as the prosecutrix had passed away and the complainant could not be located. Consequently, their incomplete statements without cross-examination cannot be considered legal evidence or used to hold the respondents criminally liable, the bench reasoned.

Case Title: State of J&K Vs Davinder Kumar & Ors.

Citation: 2023 LiveLaw (JKL) 154

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