What conditions are to be satisfied before deposition recorded in previous suit can be relied in subsequent suit?

6. As per the well settled law on the subject the following conditions are necessary to be satisfied before the evidence recorded in a previous judicial proceedings can be received in another judicial proceedings:-

(1) The evidence must have been given in a judicial proceeding or before any person authorized by law to take evidence;

(2) That the first proceeding was between the same parties as in the second proceeding or between representatives in interest of the parties;

(3) That the party against whom the deposition is tendered had the full opportunity of cross examining the deponent when the deposition was recorded;

(4) That the issues involved in both the proceedings are the same or are substantially the same;

(5) That the witness is incapable of being called at the subsequent proceeding on account of death, or incapability of giving evidence, or being kept out of the way by the other side, or an unreasonable amount of delay or expense etc.,

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

C.R.P. No. 7339 of 2018

Decided On: 23.04.2019

Jakka Srinivasa Rao  Vs. Javvaji Venkata Chalapathi Rao and Ors.

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Whether it is necessary for court to see pleadings of both suits to ascertain whether deposition recorded in previous suit is admissible in subsequent suit?

 Just like in a case of the res judicata etc., where the pleadings in the earlier and later to be filed to enable the Court to come to a conclusion that the issue in both the matters are the same, in a case of this nature also that if the Court has to come to a conclusion that the issues involved in both the suits are same/substantially the same and that the parties are same etc. Hence, there is a necessity for the Court to consider the pleadings or other material etc., in both the suits to come to this conclusion. The Court should also be convinced that the party, against whom the deposition is tendered, has had a full opportunity of cross-examining the defendants. For this the entire deposition of the witness must be filed and considered. Lastly, the Court should be convinced that the witness was "incapable" of giving evidence in the subsequent proceedings. The incapacity should not be temporary or momentary as it is when caused by the temporary weakness, illness etc. The Court should be clearly convinced on all these grounds and the party who wishes to file the deposition in the earlier suit should plead and prove these essential elements.

CONCLUSION:

10. In the case on hand the Trial Court did not have any material whatsoever to conclude (a) that the issues involved in both the proceedings are same or substantially the same; (b) that all the parties in the earlier suit had an opportunity of full and complete cross-examination of the witness whose deposition is sought to be marked; (c) that the witness was incapable of giving evidence because of his sickness or for some other similar reasons. As mentioned by this Court earlier, these are all the matters which have to be carefully assessed by the Court and proved by the petitioners. In fact, the affidavit filed in this case in support of the application to receive the deposition states that the witness in intentionally avoiding to give evidence (emphasis supplied), which clearly suggests that witness is conscious of what he is doing and is deliberately avoiding to give replies. In addition to this the counter filed also asserts that due to old age weakness and paralysis the witness was not giving evidence and the counter reiterates that he is not disabled.

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

C.R.P. No. 7339 of 2018

Decided On: 23.04.2019

Jakka Srinivasa Rao  Vs. Javvaji Venkata Chalapathi Rao and Ors.

Hon'ble Judges/Coram:

D.V.S.S. Somayajulu, J.

Citation: AIR 2019 AP 18

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Whether court can deliver judgment in one case on basis of evidence recorded in another case?

 In Sessions Case No. 58/98 against A-16 and A-17, no evidence was recorded independently. On the other hand, the evidence recorded in Sessions Case No. 118/1992 was marked as evidence in Sessions Case No. 58/1998. The Indian Evidence Act, 1872 does not permit such a mode of proof of any fact barring in exceptional situations contemplated in Section 33 of the Indian Evidence Act.

41. There is no material on record to warrant the procedure adopted by the Sessions Court. On that single ground, the entire trial of Sessions Case No. 58/98 is vitiated and is not in accordance with procedures established by law.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1525 and 1526-1527 of 2009

Decided On: 16.05.2018

 Vinubhai Ranchhodbhai Patel Vs. Rajivbhai Dudabhai Patel and Ors.

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When deposition of witness taken in one case can not be relied on in another case?

Relevancy of Section 33 of the Evidence
Act is required to be considered and the same reads as under:

33. Relevancy of certain evidence for proving, in
subsequent proceeding, the truth of facts therein
stated.  Evidence given by a witness in a judicial
proceeding, or before any person authorized by law to
take it, is relevant for the propose of proving, in a
subsequent judicial proceeding, or in a later stage of
the same judicial proceeding, the truth of the facts
which it states, when the witness is dead or cannot be
found, or is incapable of giving evidence, or is kept out
of the way by the adverse party, or if his presence
cannot be obtained without an amount of delay or
expense which, under the circumstances of the case, 
the Court considers unreasonable:
           Provided-
That the proceeding was between the same  
parties or their representatives in interest;
That the adverse party in the first proceeding
had the right and opportunity to cross-examine;
That the questions in issue were substantially
the same in the first as in the second
proceeding.



      In the present revisions, none of the conditions, which have
been enumerated under Section 33 of the Act, are either pleaded or
proved.  In other words, the conditions, which entitle invocation of
Section 33 of the Act to bring on record the evidence given in other
proceedings, are not present.  This Court in Talasila Suresh
(1 supra) and Katru John Kennedy (2 supra) held that existence
of the circumstances mentioned under Section 33 of the Act is
mandatory.  It is also held in Guduru Nirmala (3 supra) that the
aspect of delay and importance of adhering to the procedure
prescribed has been emphasized.  

      In the present set of facts and on account of confusion that
the mandatory conditions prescribed under Section 33 of the Act
being absent, the depositions in C.C.No.387 of 2008 cannot be
brought on record.  
ANDHRA PRADESH HIGH COURT
CIVIL REVISION PETITION Nos.1135 OF 2015 and batch     

Dated;21-09-2015 

Vempati Venkateswar Rao.
Vs

Challa Vijaya and another 


THE HONBLE SRI JUSTICE CHALLA KODANDA RAM            

CIVIL REVISION PETITION Nos.1135, 1316 AND 1521 OF 2015       

Citation;AIR 2016(NOC)250 HYD

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Whether Statement of victim recorded U/S 164 of crpc can be read in evidence as per S 33 of Indian evidence Act?

For the application of Section 33 Indian Evidence Act, it is mandatory that the adversary must have the right and opportunity to cross-examine the witness, but at the time of recording statement u/s 164, Cr.P.C, there vests no right or opportunity with the adversary to cross-examine the witness. Hence, Section 33 of Indian Evidence Act is not applicable in the case at hand meaning thereby that we cannot legally read the statement of victim recorded u/s 164,Cr.P.C on the strength of Section 33 of Indian Evidence Act at least. However, the statement of witness recorded u/s 164, Cr.P.C, itself bears a corroborative value.

Jharkhand High Court

Barju Sah vs State Of Jharkhand on 13 August, 2015

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