Sunday 12 March 2017

Whether evidence untested by cross-examination is admissible in evidence?

 It is unfortunate that this witness who would have been an important witness for defendants Nos. 4 to 11 was not examined earlier. She was ill when she was exainined-in-chief, and her examination was adjourned after a few sentences in cross-examination were recorded. She died before cross-examination could be resumed. There was considerable argument as to the admissibility of her evidence which it was not possible to test by cross-examination. 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 Taylor on Evidence, Section 1469 : Davies v. Otty (1865) 35 Beav. 208, Elias v. Griffith (1877) 46 L.J. Ch. 806, Man Gobinda Chowdhuri v. Shahindia Chandra Chowdhuri (1908) 35 Cal. 28, andDhanu Ram Mahto v. Murli Mahto (1909) 36 Cal. 566. There is nothing in the Evidence Act which renders such evidence inadmissible. In Rosi v. Pillamma (1910) 20 M.L.J. 400 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. I am not disposed to attach any weight to the evidence of this witness.
Madras High Court
Maharaja Of Kolhapur vs S. Sundaram Ayyar And Ors. on 21 January, 1924
Equivalent citations: AIR 1925 Mad 497

Author: O Spencer
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