Whether a party can confront a witness in cross-examination by showing him inadmissible document?

Clearly the procedure sought to be adopted is unviable. If the Plaintiff wanted to lead these documents in evidence, he ought to have done so before he closed his case. If he wished to hold them back for use in confronting the witness, he ought to have ensured that he had documents that were otherwise properly admissible in evidence. Dr. Chandrachud attempts an argument that a document used in this fashion is not substantive evidence. That is only partly correct. It may not, in and of itself, be substantive evidence of any fact that otherwise needs to be proved; but as a piece of evidence it has no higher or lower status than any other material that is duly received in evidence. Evidence is either primary or secondary. Material in evidence is not stratified by class or degree as higher or lower, as if to suggest that within the pool of evidence there is some sort of hierarchical taxonomy. The probative value of any piece of evidence may vary and may be the subject of argument; but once a document is marked as an Exhibit in evidence, it is like every other piece of evidence. If a witness is confronted with a document in a manner permitted by law, that document will be read in evidence; it will not be read in evidence at any lower level. It may not be proof in and of itself, substantively, of any given fact but that does not mean that it is relegated to some inferior position.
In the High Court of Bombay

(Before G.S. Patel, J.)

Vijay Kumar Gupta   Vs  Naresh Kumar Gupta

Testamentary Suit No. 72 of 2005

In

Testamentary Petition No. 528 of 2005

Decided on May 4, 2016

Citation: 2016 SCC OnLine Bom 8659

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Whether it is necessary for a party to produce negative of photograph along with photo for confronting witness in cross examination?

Order 7 Rule 14(3), Order 8 Rule 1A(4) and Order 13 Rule 1(3) all provide that the rule for filing a document alongwith pleadings and/or before the settlement of issues does not apply to documents with which a witness may be confronted in his cross examination. The question which arises is as to with what documents a witness can be confronted; whether with those mentioned in Sections 144 and 145 of the Evidence Act only or with others also. In the opinion of this court, no limitation can be placed on the documents which can be confronted to the witness. The present case itself gives a classic illustration in this regard. The witness is an architect who claims to have inspected the property and reported that the tenants have carried out unauthorized changes in the property and which changes have lowered the value, utility or security of the building. The endeavour of the cross examining party would be to falsify the said report. The same can be done by showing to the said witness the photographs or other material which would run contrary to the testimony or report of the said witness. Such material would not necessarily be one to which the witness would be a signatory or a scribe. The said material can be in the form of photographs and from the replies of the witness to the said material it can be established whether the witness has visited the property or not and has inspected the same or not and whether his reporting is correct or not. For instance if the witness has deposed as to the weakening of the structure by removal of a wall and if from the photograph it is apparent that the wall was merely the partition wall and the structure is otherwise supported by pillars and beams then I see no reason why such photographs cannot be shown to the witness and/or why he cannot be confronted with the same.

7. The contention qua negatives is also not correct. The negatives are required when photographs are sought to be proved in examination in chief and not when used for confronting the witness.

IN THE HIGH COURT OF DELHI

C.M.(M) Nos. 692, 702, 9953 and 10057/2009

Decided On: 30.11.2009

 Surinder Kumar Bajaj  Vs.  Sheela Rani Pasricha

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Whether a witness can be confronted in cross examination by showing document of which he is neither signatory not scribe?

Order 7 Rule 14(3), Order 8 Rule 1A(4) and Order 13 Rule 1(3) all provide that the rule for filing a document alongwith pleadings and/or before the settlement of issues does not apply to documents with which a witness may be confronted in his cross examination. The question which arises is as to with what documents a witness can be confronted; whether with those mentioned in Sections 144 and 145 of the Evidence Act only or with others also. In the opinion of this court, no limitation can be placed on the documents which can be confronted to the witness. The present case itself gives a classic illustration in this regard. The witness is an architect who claims to have inspected the property and reported that the tenants have carried out unauthorized changes in the property and which changes have lowered the value, utility or security of the building. The endeavour of the cross examining party would be to falsify the said report. The same can be done by showing to the said witness the photographs or other material which would run contrary to the testimony or report of the said witness. Such material would not necessarily be one to which the witness would be a signatory or a scribe. 

IN THE HIGH COURT OF DELHI

C.M.(M) Nos. 692, 702, 9953 and 10057/2009

Decided On: 30.11.2009

 Surinder Kumar Bajaj  Vs.  Sheela Rani Pasricha

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation: 2009 SCC Online Del 3855

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Whether husband can be permitted to produce CD and transcript in cross examination of wife for confronting her?

 This is the most necessary incident of the exercise of cross-examination. The very purpose of the cross-examination will be frustrated, if the documents with which a witness of the other side of the Plaintiff_ s witness is to be confronted is shown to or inspected by that party earlier. The Court is concerned with the determination of the truth. Truth has to emerge from the evidence on record. The skill of the cross-examiner brings forth the hitherto unknown truth on record. This takes place in a cross-examination. It would be a farce to notify the party who is being cross-examined of the questions that may be asked by the cross-examiner. Consequently, in the cross-examination of a party any document can be produced and the witness under cross-examination can be confronted therewith. Similarly any document can be produced to that end for the witness to refresh his or her memory.

 The dispute between the parties is not ambiguous to either of them. The ambit of evidence has, therefore, to be set out. The Defendant is entitled to rely upon the recorded conversation on the CD by the fact of production of the CD in the cross-examination of the Plaintiff. If the Plaintiff admits the contents, it would be read in evidence. If the Plaintiff disputes the contents, the Defendant would have to prove, by direct or circumstantial evidence in his own examination-in-chief, the accuracy of the recorded conversation. For that proof, the Defendant may produce the original electronic record itself. The Defendant may seek to play it before the Court to have the voice of the Plaintiff, hitherto disputed, identified in Court. The Defendant may himself identify the voice and get it produced in evidence and apply for playing it on record for the Court to appreciate the identified document being the recorded conversation on the CD. The Defendant may produce any other circumstantial evidence to prove the authenticity of the CD as he would for any other documentary evidence. The Defendant would also be entitled, but as a last resort, to have the forensic evidence to identify the voice of the Plaintiff by having the voice of the Plaintiff recorded as an admitted document and compared by an expert in the forensic laboratory to verify that voice with the voice on the taped conversation on the C Ds.

29. It is argued on behalf of the Defendant that the Defendant has taken out the application well in advance for the forensic report to be obtained. The application is, of course, not premature. However, the application involves the requirement of recording of Plaintiff_ s voice and then comparing it with the already recorded voice on the C Ds much as the verification of the admitted and disputed signatures of the parties would be. However, the Plaintiff may choose to admit the contents of the CD or whatever is stated in paragraph of the Written Statement, the entire exercise sought by the Defendant would be avoided since admitted facts need not be proved. Since much would depend upon the Plaintiff s own evidence, the Plaintiff need not be taken through the exercise of having her voice recorded and then verified by the forensic expert at present. However, after the Plaintiff s cross-examination is completed and the Defendant considers production of CD as his own document and relies upon it in the affidavit of documents, the Defendant would be entitled to prove its accuracy through any of the aforesaid modes. For that purpose, the Defendant shall be entitled to prove the tape recorded conversation through the recording of the voice of the Plaintiff and having it verified by the forensic expert as prayed for by him in prayer (ii) of this Notice of Motion.

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. 8 of 2010 IN Suit No. 16 of 2008

Decided On: 28.01.2011

 Havovi Kersi Sethna  Vs. Kersi Gustad Sethna

Hon'ble Judges/Coram:

R.S. Dalvi, J.

Citation: 2011(3) BOM CR 100

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Whether prosecution can confront a witness on the basis of statement recorded U/S 162 of crpc?

The proviso is vital and important.  That clarifies that

any witness is called for the prosecution in the enquiry or the trial and
whose statement has been reduced into writing in terms of sub­section (1)

of Section 162, any part of his statement, if duly proved, may be used by

the accused and with the permission of the Court by the prosecution to

contradict such witness in the  manner provided by Section 145 of the

Indian Evidence Act, 1872 and when any part of such statement is so used,

any part thereof can also be used in re­examination of such witness, but for

the   purpose   only   of   explaining   the   matter   referred   to   in   his   cross-

examination. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1309 OF 2013

Shri Pappu @ Suresh Budharmal Kalani


Versus

The State of Maharashtra       .. Respondent

Read full judgment here;click here

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