The accused had sexual intercourse with me on the pretext
that he would marry me. After I became pregnant I requested to
him to marry me but he refused. The accused married some other
girl.”
We have divided the material portion of her deposition in groups for the
convenience of discussion. Her deposition, as regards the forcible rape on 22nd
February, 2001 has remained uncontroverted. There is no cross-examination on
that aspect of the matter, except for a suggestion that her deposition to that
extent was false. The aforesaid deposition of the victim is corroborated by the
written complaint which has been marked as Exhibit -2. Absence of any crossexamination
whatsoever, on that aspect of the matter is a pointer to show that
the learned counsel cross-examining her was conscious of the fact that this partof her deposition was true. He, therefore, avoided to put any question on that
aspect of the matter.
Reference in this regard may be made to the judgement in the case of –
A.E.G. Carapiet -Vs- A. Y. Derderian reported in AIR 1961 Cal 713 wherein a
Division Bench of this Court quoted with approval the following views from an
English judgement.
“To my mind nothing would be more absolutely unjust than not
to cross-examine witnesses upon evidence which they have given, so
as to give them notice, and to give them an opportunity of
explanation, and an opportunity very often to defend their own
character, and, not having given them such an opportunity, to ask
the jury afterwards to disbelieve what they have said, although
not one question has been directed either to their credit or to
the accuracy of the facts they have deposed to.”
In fact Lord Halsbury described the situation as a “perfect
outrage” at page 77 of the said report. After quoting the evidence
the learned Lord said:
“My Lords, it seems to me that it would be a perfect outrage
and violation of the proper conduct of a case at Nisi Prius if,
after the learned counsel had declined to cross-examine the
witness upon that evidence, it is not to be taken as a fact that
witness did complain of the plaintiff's proceedings, that he did
receive advice, that he went round to Mr. Dunn as a solicitor, and
that he did sign that retainer, the whole case on the other side
being that the retainer was a mere counterfeit proceeding and not
a genuine retainer at all.”
The same view is expressed in the 13th Edition of Odger on
Pleading and Practice at page 261 and the 9th Edition of Phipson.
On Evidence at page 497-498”
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
Chief Justice Girish Chandra Gupta
And
Justice Arindam Sinha
CRA No.422 of 2008
GOPAL MONDAL V THE STATE OF WEST BENGAL
Dated : 25/11/2016
Citation: 2017 CRLJ 931 Cal
Print Page
that he would marry me. After I became pregnant I requested to
him to marry me but he refused. The accused married some other
girl.”
We have divided the material portion of her deposition in groups for the
convenience of discussion. Her deposition, as regards the forcible rape on 22nd
February, 2001 has remained uncontroverted. There is no cross-examination on
that aspect of the matter, except for a suggestion that her deposition to that
extent was false. The aforesaid deposition of the victim is corroborated by the
written complaint which has been marked as Exhibit -2. Absence of any crossexamination
whatsoever, on that aspect of the matter is a pointer to show that
the learned counsel cross-examining her was conscious of the fact that this partof her deposition was true. He, therefore, avoided to put any question on that
aspect of the matter.
Reference in this regard may be made to the judgement in the case of –
A.E.G. Carapiet -Vs- A. Y. Derderian reported in AIR 1961 Cal 713 wherein a
Division Bench of this Court quoted with approval the following views from an
English judgement.
“To my mind nothing would be more absolutely unjust than not
to cross-examine witnesses upon evidence which they have given, so
as to give them notice, and to give them an opportunity of
explanation, and an opportunity very often to defend their own
character, and, not having given them such an opportunity, to ask
the jury afterwards to disbelieve what they have said, although
not one question has been directed either to their credit or to
the accuracy of the facts they have deposed to.”
In fact Lord Halsbury described the situation as a “perfect
outrage” at page 77 of the said report. After quoting the evidence
the learned Lord said:
“My Lords, it seems to me that it would be a perfect outrage
and violation of the proper conduct of a case at Nisi Prius if,
after the learned counsel had declined to cross-examine the
witness upon that evidence, it is not to be taken as a fact that
witness did complain of the plaintiff's proceedings, that he did
receive advice, that he went round to Mr. Dunn as a solicitor, and
that he did sign that retainer, the whole case on the other side
being that the retainer was a mere counterfeit proceeding and not
a genuine retainer at all.”
The same view is expressed in the 13th Edition of Odger on
Pleading and Practice at page 261 and the 9th Edition of Phipson.
On Evidence at page 497-498”
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
Chief Justice Girish Chandra Gupta
And
Justice Arindam Sinha
CRA No.422 of 2008
GOPAL MONDAL V THE STATE OF WEST BENGAL
Dated : 25/11/2016
Citation: 2017 CRLJ 931 Cal
