Evidence Of Witness In Examination-In-Chief Doesn’t Become Inadmissible Merely Because He Couldn’t Be Cross-Examined: Patna HC Reiterates

A Single Judge Bench of Justice Sunil Dutta Mishra underlined that such evidence can be made admissible but weight to be attached to such testimony will depend upon the facts and circumstances.

“The evidence untested by cross-examination can have no value but the evidence cannot be rejected as inadmissible. The correct rule is that the evidence is admissible but the weight to be attached to such evidence should depend on 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,” the Court observed.

The petitioner/plaintiff filed a suit for declaration of a sale-deed as void being fraudulent, illegal, inoperative and without consideration. During the trial, the plaintiff brought a witness, whose examination-in-chief was filed. Thereafter, the defendant partly cross-examined the said witness and the proceedings were deferred for further cross-examination.

However, the said witness died before he could be cross-examined completely on such a deferred date. Accordingly, the defendant filed a petition with a prayer to expunge the evidence of the witness as his cross-examination could not be completed. The trial Court allowed such petition by the impugned order. Hence, this petition was filed challenging the same.

It was argued on behalf of the petitioner that the Trial Court failed to assign any reason with regard to expunging the evidence of the witness. It was further submitted that in the event of death or serious illness of a witness between his examination-in-chief and his cross-examination, the evidence previously given by him is admissible though the degree of weight to be attached to will depend on facts and circumstances. However, Trial Court cannot throw the evidence altogether.

On the other hand, it was argued for the respondent that unless the witness was cross-examined, the effect of second proviso of Section 33 of Indian Evidence Act is not applicable and therefore, the impugned order was rightly passed as it relates to expunging of evidence of the said witness.

Court’s Observations

The Court noted that Section 33 of the Evidence Act deals with the relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts stated therein. The provision says that the evidence given by a witness in an earlier judicial proceeding is relevant in a subsequent judicial proceeding or at a later stage of the same judicial proceeding, for the purpose of proving the truth of the facts contained therein, if certain conditions mentioned in the section are satisfied.

The Court then proceeded to cite ruling of the Apex Court in V.M. Mathews v. S. Sharma, wherein it was held that in view of the second proviso to Section 33 of the Evidence Act, evidence of a witness in a previous proceeding would be admissible under Section 33 only if the adverse party in the first proceeding had the right and opportunity to cross-examine the witness.

The Court, however, clarified that the words “that the adverse party in the first proceeding had the right and opportunity to cross-examine” used in second proviso to Section 33 of the Evidence Act cannot be stretched to be interpreted to mean “that the adverse party had actually cross-examined such witness.”

“Moreover, the second proviso of Section 33 of the Evidence Act deals with witness cross-examined in “a previous proceeding” but in the present case in hand, the opportunity to cross-examine was available in the same proceeding and not referable to any subsequent proceeding or a later stage in same proceeding,” the Court added further.

The Court also placed reliance on a catena of judgments rendered by different High Courts, including the ones in Srikishun Jhunjhunwalla v. Emperor by the Patna High Court itself and Srikumar Mukherjee v. Avijit Mukherjee & Ors. by the Calcutta High Court wherein it was commonly held that the evidence of such witness shall remain on record and the Court shall consider its probative or evidentiary value or relevancy alongwith other evidence so available, which obviously depends upon case to case.

“The Court should look at the evidence carefully to see whether there are indications that by a complete cross-examination the testimony of the witness was likely to be seriously shaken or his good faith to be successfully impeached. If the evidence is inadmissible the Court is not entitled to consider it at all whereas if it admissible the Court must decide on the circumstances of each case whether any weight should be attached to it or not,” the Court restated accordingly.

Resultantly, the application was allowed setting aside the order of the Trial Court which expunged the evidence of the above witness.

Case Title: Anamika Pranav v. Anil Kumar Choudhary

Case No.: CMP No. 538 of 2018

Citation: 2023 LiveLaw (Pat) 5

Judgment Dated: 8^th February 2023

Coram: S.D. Mishra, J.

Amicus Curiae: Mr. J.K. Verma, Advocate

Counsel for the Petitioner: Mr. Arjun Kumar & Mr. Alok Kumar, Advocates

Counsel for the Defendant: Mr. Ranjan Kumar Dubey, Advocate