Whether evidence of a witness is liable to be discarded if he dies before his cross examination?

Wigmore has laid down the following principle in dealing with the statement of a witness who dies before his cross-examination :-

" BUT, where the death or illness prevents cross-examination under such circumstances that no responsibility of any sort can be attributed to either the witness or his party, it seems a harsh measure to strike out all that has been obtained on the direct examination. Principle requires in strictness nothing less. But the true solution would be to avoid any inflexible rule, and to leave it to the trial Judge, to admit the direct examination so far as the loss of cross-examination can be shown to him to be not in that instance a. material loss. Courts differ in their treatment of this difficult situation; except that, by general concession, a cross-examination begun, but unfinished, suffices if its purposes have been substantially accomplished." (see page 765 of Woodroffe and Ameer Ali's Law of Evidence, 11th Edition.) {Para 11}

(12) I have given the matter my consideration and am of the view that the statement of a witness in examination-in-chief, which was admissible at the time it was recorded, cannot become inadmissible by reason of the subsequent death of the witness before cross-examination. The absence of cross-examination would undoubtedly affect the value and weight to be attached to the statement of the witness, but it would not render the statement inadmissible or result in its effacement. So far as the question is concerned as to what weight should be attached to such statement made in examination-in-chief the Court has to keep in view the facts and circumstances of each individual case. Some of the factors which may be borne in mind are the nature of the testimony, its probative value, the status of the witness, his relationship or connection with the parties to the case, a likely animus which may colour his statement and any other factor touching the credibility of the witness which may emerge on the record. Regard must also be had to the fact that the witness has not been subjected to cross-examination. The Court should see whether there are indications on the record that as a result of cross-examination his testimony was likely to be seriously shaken or his good faith or credit to be successfully impeached. The Court may also adopt a rule not to act upon such testimony unless it is materially corroborated or is supported by the surrounding circumstances. If after applying that rule of caution, the Court decides to rely upon the statement of a witness who was examined in chief, but who died before cross-examination, the decision of the Court in this respect would not suffer from any infirmity.

 IN THE HIGH COURT OF DELHI

Regular Second Appeal No. 28 of 1962

Decided On: 08.07.1969

Krishan Dayal Vs. Chandu Ram

Hon'ble Judges/Coram:

H.R. Khanna, J.

Citation:  MANU/DE/0078/1969.

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Whether the right of accused to have fair trial is violated if the court is examining witnesses through video linkage?

 Since the purpose of enactment of Electronic Video Linkage Rules for Courts (Kerala), 2021 itself is to examine the witnesses whose presence could not be secured without undue delay or expenses and for other reasons stated in Rule 8(23), a person who has been employed in Dubai whose presence could not be secured without delay and also without spending travelling and other expenses when allowed to be examined through video linkage, in terms of the rules, in such a case the petitioner has no right to say that cross examination by video linkage is not effective and as good as physical mode and, therefore, such examination should not be permitted. In fact, the examination of the witness either through physical mode or through video linkage, the same makes no difference as far as the right of the accused to cross examine the witness is concerned. However, the intention of the petitioner securing physical presence of the witness for examination may be one with ulterior motive, which I am not inclined to discuss in detail. That apart, it is worthwhile to note that the framers of the Rules even visualised the argument of this nature while implementing the Rules and they vigilantly implemented Rule 8(24) and the said provision provides that subject to the orders of the Court, if any party or his authorised person is desirous of being physically present at the Remote Point at the time of recording of the evidence, it shall be open for such party to make arrangements at his own cost. If so, the dread persuasion of the petitioner could be addressed by resorting to Rule 8(24), subject to the orders of the Court. {Para 10}

11. It is pertinent to note that, if the submissions of the learned counsel for the petitioner is accepted, the same is akin to make the Electronic Video Linkage Rules for Courts (Kerala), 2021 redundant. The principles governing interpretation do not permit interpretation of a provision of law or an enactment to make the same as redundant.

12. Epitomizing the discussion, it is held that the learned Special Judge rightly allowed the petition with a view to secure examination of CW1, whose presence could not be secured without undue delay or expenses, through video linkage and with bona fide intention to dispose of a case of the year 2012, pending for the last 11 years, without further delay. Therefore, the order impugned does not suffer from any infirmity or requires any interference and the order impugned is liable to be confirmed.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.MC NO. 1465 OF 2023

GOPAL.C. Vs  CENTRAL BUREAU OF INVESTIGATION

PRESENT

 MR. JUSTICE A. BADHARUDEEN

Dated: 3rd day of March, 2023

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Madras High court has deprecated practice of harassment of witnesses by cross-examining Advocate

Gone are the days that the defence counsel would take
trial proceedings so seriously and cross examine the witnesses
on the same day and also avoiding unnecessary questions by
extending fullest cooperation to the court for trial and disposal of
the cases. The case on hand is a classic illustration as to how
there is a complete change in the attitude of some of the counsel
and as to how they take it as a platform to harass the witnesses.
We are really anguished by going through the cross examination
of the witnesses in this case. We do not understand as to how the
Judge was a silent spectator without making any intervention
when the witnesses were harassed like anything. The expression
of our anguish in this judgement is only to convey our hope to all
concerned that the justice delivery system cannot be taken for a
ride by anyone. The time tested system will withstand all such
attempts in the war wagged against the system by unscrupulous
people
THE HIGH COURT OF JUDICATURE AT MADRAS

Judgement Pronounced on: 19..01..2017
CORAM
 MR.JUSTICE S.NAGAMUTHU
and
 MR.JUSTICE N.AUTHINATHAN
Criminal Appeal No.83, 84, 85 and 93 of 2016
Crl.A.No.83 of 2016

Sampathkumar Vs  State

COMMON JUDGEMENT
S.NAGAMUTHU, J.
Dated: 19..01..2017
Citation: (2017) 2 MLJ(Criminal) 105

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Supreme Court: Private Counsel Engaged By Victim To Assist Public Prosecutor Cannot Make Oral Argument/Cross Examine Witnesses

We find that a victim's counsel should ordinarily not be given the right to make oral arguments or examine and cross-examine witnesses. As stated in Section 301(2), the private party's pleader is subject to the directions of the Public Prosecutor. In our considered opinion, the same principle should apply to the victim's counsel under the proviso to Section 24(8), as it adequately ensures that the interests of the victim are represented. If the victim's counsel feels that a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself. This would not only preserve the paramount position of the Public Prosecutor under the scheme of the Code of Criminal Procedure, but also ensure that there is no inconsistency between the case advanced by the Public Prosecutor and the victim's counsel.

12.5. However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim's counsel, the victim's counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim's counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his powers Under Section 311 of the Code of Criminal Procedure or Section 165 of the Indian Evidence Act, 1872. In this regard, we agree with the observations made by the Tripura High Court in Smt. Uma Saha v. State of Tripura (supra) that the victim's counsel has a limited right of assisting the prosecution, which may extend to suggesting questions to the Court or the prosecution, but not putting them by himself.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1727 of 2019 

Decided On: 20.11.2019

 Rekha Murarka  Vs.  The State of West Bengal and Ors.

Hon'ble Judges/Coram:

Mohan M. Shantanagoudar and Deepak Gupta, JJ.

Citation: (2020) 2 SCC474,AIR 2020 SC 100

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Whether it is necessary to give suggestion in cross examination in Civil proceeding?

As far as the argument of suggestion having not been given to PW2 is concerned, I may mention that the tenor of the entire cross examination by the respondent of PW2 is to challenge his statement; though of course no specific suggestion is given that he has lied on the aspect of payment of Rs. 4,25,000/- in cash in his presence. However, I am of the opinion that in a civil trial which is based on pleadings, there is no need for such suggestions to be given. The respondent in his written statement had already denied the said payment and it was for the appellant to prove the same. The practice of giving suggestions in cross examination to witnesses is of criminal trials where there are no pleadings and the defence is built up by giving such suggestions. However unfortunately the said practice of criminal trials has crept into the civil trials also to the extent that most of the cross examinations being in the form of suggestions alone and which take considerable time. The purport of cross examination is to challenge the testimony and/or to falsify the witness or his credit worthiness and not to give suggestions to the effect that each and every deposition in examination-in-chief is false. Similarly, a party in a civil trial is not required to in cross examination put its case to the witness as the same as aforesaid already exists in the pleadings.

IN THE HIGH COURT OF DELHI

RFA 205/2004

Decided On: 10.07.2013

Sher Mohammad Vs. Mohan Magotra

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation: 2013 SCC OnLine Del 2530.

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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 part of affidavit of examination in chief which is not in consonance with pleading can be ignored by court?

 In my view, Mr. Shah learned counsel appearing for the applicant has rightly pointed out that part of the deposition of Dr Navroze Kotwal is irrelevant to the issues and beyond the scope of pleadings as the said witness has sought to lead evidence on the matrimonial dispute between the applicant the said witness which allegations are neither relevant for the purpose of deciding any issues in testamentary matter, nor is in consonance with the pleadings filed by the defendants. It is not in dispute that defendants have already led evidence of three witnesses on various issues framed. The witness now proposed to be examined to prove that the Will was not executed by the said deceased is contrary to the affidavit filed by the deponent himself in which he has not only admitted execution of the Will but has reserved his right to act as executor in future. The deponent of the said affidavit has never applied for withdrawal of the said affidavit filed in this Court.

54. In my view, the objections thus raised by the plaintiff in respect of part of the evidence highlighted in affidavit in support of chamber summons has merits and thus such part of affidavit deserves to be ignored while recording of evidence of witness Dr Navroze Kotwal with a clarification that plaintiff need not cross examine the said witness in respect of such part of deposition referred in the schedule to the chamber summons.

IN THE HIGH COURT OF BOMBAY

Chamber Summons (L) No. 67 of 2014 in Testamentary Suit No. 26 of 1999 in Testamentary Petition No. 504 of 1998

Decided On: 10.06.2014

 Mahabanoo Navroz Kotwal Vs.  Piloo Fali Bomanji

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

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Whether accused adopting cross examination of witness taken by other accused can find fault in evidence of witness?

 In our view, the second instance also has no substance. It is for the reason that the Appellant (A-6) had an opportunity to cross-examine PW-3 and PW-4 on all the so-called contradictions to the two witnesses but he failed to avail of this opportunity by not cross-examining PW-3 and PW-4. On the other hand, the Appellant adopted the cross examination done by other Accused on PW-3 and PW-4 and gave up his right of cross-examination to these two witnesses. In this view of the matter; he cannot now be permitted to find fault in the evidence of PW-3 and PW-4 and rely upon some contradictions which otherwise do not show any contradiction much less major one affecting their testimony.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1305 of 2008

Decided On: 10.10.2018

 Bilal Hajar Vs. State

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Indu Malhotra, JJ.

Citation: AIR 2018 SC 4780

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NOTES ON COURT COMMISSIONER

S 75 of CPC provides that court may a commission-

a) to examine any person;

b) to make a local investigation;

c) to examine or adjust accounts;

d) to make partitions;

e) to hold a scientific, technical or expert investigation;

f) to conduct the sale of property which is subject to speedy and natural decay, and which is in custody,of the court pending the determination of suit; or

g) to perform any ministerial act;

Read important judgments on court commissioner:

Click here

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Whether a party can produce document in cross examination even if it was not produced along with written statement?

Order VII Rule 14, Order VIII Rule 1 and Order XIII Rule 1 of the Civil Procedure Code. Besides, if an interpretation as canvassed by Shri Pangam is accepted, the provisions of Order VII, Order VIII and Order XIII would be rendered nugatory and as observed in Laxmikant Sinai Lotlekar (supra). The learned Trial Court therefore was in jurisdictional error to disallow the objections raised by the petitioner-plaintiff contrary to the mandate of Order VIII Rule 1 and Order XIII Rule 1(3)(a) of the Civil Procedure Code. The Respondents had to follow the mandate as contained in Order VIII Rule 1 of the Civil Procedure Code and could not seek to produce such documents directly during the cross examination of the plaintiff which it had to otherwise rely upon in a list of documents as required by law. The learned Trial Court therefore committed a jurisdictional error and therefore the impugned Order calls for an interference.
 In the result, the Petition is allowed and the impugned Order is quashed and set aside. It goes without saying that there is no need of any reference of the matter to the Chief Justice for referring to a larger Bench in view of the decision in Purshottam (supra) and Laxmikant Sinai Lotlekar (supra). There shall be no order as to costs.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 1014 of 2016

Decided On: 15.09.2017

 Vinayak M. Dessai Vs. Ulhas N. Naik and Ors.

Hon'ble Judges/Coram:

Nutan D. Sardessai, J.

Citation: 2018(2) MHLJ 348

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Whether Court can impose time limit upon cross-examination?

While, therefore, I quite agree that the Court should not as a rule impose a particular time limit as regards the cross-examination of a party or a witness, I am unable to assent to the proposition that the Court has no discretion or control in such a matter. Obviously, the Court must have such power. Otherwise, the work of the Court would be impossible. On the whole, therefore, I am satisfied that the order made by the learned Magistrate is not open to any exception and that there is no ground to interfere with that order.

IN THE HIGH COURT OF BOMBAY

Criminal Revn. Appln. No. 1427 of 1954

Decided On: 17.12.1954

Yeshpal Jashbhai Parikh Vs. Rasiklal Umedchand Parikh

Hon'ble Judges/Coram:
Y.V. Dixit, J.

Citation : AIR 1955 Bom 318

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Whether Advocates have right of unlimited argument or unlimited cross-examination?

However that may be, the principle is, I think, indisputable that the Court has, and should have, a discretion in controlling the cross-examination, and while the Court will allow reasonable latitude to an advocate or counsel to cross-examine a party or a witness, it should always be remembered that the Court has an undoubted control and  discretion in the matter of controlling the cross-examination of a party by counsel of the opposite party.

4. This principle is not new and its soundness has been recognised in several decisions, both of the Privy Council and of this Court. In the first place, there is a decision of the Privy Council reported in - 'Vassiliades v. Vassiliades', AIR 1945 PC 38, and the principle laid down in that case will be found set out at p. 41, This is what the Privy Council says :

(No doubt) cross-examination is one of the most important processes for the elucidation of the facts of a case and all reasonable latitude should be allowed, but the Judge has always a discretion as to how far it may go or how long it may continue. A fair and reasonable exercise of his discretion by the Judge will not generally be questioned by an appellate Court. As Lord Sankey L. C. said in - "Mechanical and General Inventions Co. and Leh-wess v. Austin Motor Co.', 1935 AC 348:

"....a protracted and irrelevant cross-examination not only adds to the cost of litigation, but is a waste of public time'."

This principle has been put in another form in a judgment of the Privy Council reported in -- "Raj Kumar Sen v. Ram Sundar Shaha', AIR 1932 PC 39.

"The Court should check abuses in the cross-examination of witnesses on commission, when such examination is unduly protracted and is wholly irrelevant to the issues raised in the suit."

This ruling again says that the Court has control over the cross-examination of witnesses and the Court has got power to control the cross-examination if such examination appears to the Court to unduly protracted and wholly irrelevant. Then there are two judgments of this Court reported in -- 'Emperor v. Rahimatalli', 22 Bom LR 166: AIR 1920 Bom 402 and 'Queen-Empress v. Sayad Surfuddin', Rat Un Cr C 344 (E). This is what shah J. observed in the former case (p. 178):

"...Making due allowance for all these circumstances the arguments before us have left on my mind the impression that the length of the proceedings could have been and should have been appreciably reduced by the exercise of a more judicious control on the part of the Court over the proceedings before it consistently with the statutory rights of the parties to be heard and to examine and cross-examine witnesses under the Code of Criminal Procedure and the Indian Evidence Act and by a more active desire on the part of counsel on both sides to save the time of the Court by avoiding questions and arguments which could have at best a re-mole bearing on the points arising in the case, and the omission whereof could involve no detriment to their respective cases."

Hayward J. expressed his view in similar terms by pointing out that (p. 184) :

". .Counsel must exercise their right of audience in a reasonable manner. They have their obligations no less than their privileges. They have no right of unlimited argument or examination of witnesses but only so much as would be reasonably necessary in the particular matter."

IN THE HIGH COURT OF BOMBAY

Criminal Revn. Appln. No. 1427 of 1954

Decided On: 17.12.1954

Yeshpal Jashbhai Parikh Vs. Rasiklal Umedchand Parikh

Hon'ble Judges/Coram:

Y.V. Dixit, J.

Citation : AIR 1955 Bom 318

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How to appreciate evidence if witness is cross examined for five years?

Much has been argued on the statement of Kishan Lal Tapadia DW-1 the Power of Attorney Holder of the Secretary of the Maheswari Kunj Nyas Trust to submit that there are many contradictions in his statement and that he has accepted the possession of the appellants over the suit property as their residence and further he has deposed against the documentary evidences filed by the respondents. Learned counsel for the appellants has taken the Court through several pages of the cross examination of D.W.-1 to impress upon the court that the respondents have failed to prove their case of suit property being Dharmshala.

273. To deal with the submissions of learned counsel for the appellant in this regard, it would be relevant to note that D.W.-1 was cross examined for approximately the period of five years from 07.02.2001 to 17.05.2005. His cross examination runs in more than 500 pages of paper book No. 3. A perusal of the cross examination of D.W.-1 further shows that the same question was put to him differently several times after recalling him in the witness box. The fact that the witness was cross examined for five years is sufficient to conclude that the contradictions were bound to happen.

IN THE HIGH COURT OF ALLAHABAD

First Appeal Nos. 55 of 2008, 448 and 472 of 2007

Decided On: 06.03.2017

Radha Sharan Dubey and Ors. Vs. Ram Niwas and Ors.

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When court can permit recalling of witness for cross examination?

 I have given due consideration to the rival submissions. It is true that on plain reading of provisions of 0.18 R. 17 of the Code, it appears that only the Court is empowered to recall the witness to put such questions to elicit any clarification. However, the Supreme Court in case of K.K. Velusamy, [2011(3) ALL MR 455 (S.C.)] (supra) had an occasion to consider the provisions of 0.18 R.17 and also the provisions of Section 151 of the Code. Upon considering the said provisions, the Supreme Court in para 9 of the judgment held that, the inherent powers of the court u/s 151 of the Code is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the Court to put such question to elicit any clarifications. The Supreme Court, in para 11 of the judgment has also considered that, the Code earlier had a specific provision in Order 18 Rule 17A for production of evidence not previously known or the evidence which could not be produced despite due diligence. It enabled the court to permit a party to produce any evidence even at a belated stage, after the conclusion of his evidence, if he satisfied the court that even after the exercise of due diligence, the evidence was not within his knowledge and could not be produced by him when he was leading the evidence. That provision was deleted with effect from 1.7.2002. It is held that, deletion of the said provision does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of evidence and commencement and conclusion of arguments. Another reason for its deletion was the misuse thereof by the parties to prolong the proceedings under the pretext of discovery of new evidence. In para 12 of the said judgment, the Supreme Court has observed that, in appropriate cases, the Court may exercise its inherent powers u/s 151 of the Code, permitting the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 9626 of 2011

Decided On: 18.07.2012

Anand S/o Rangrao Ingle & Anr. Vs. Govind S/o Rangrao Ingle & Ors.

Hon'ble Judges/Coram:
S.S. Shinde, J.

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Whether party can recall witness for cross examination as of right?

 Order 18 Rule 17 of CPC contemplates as under:

               "Court   may  recall  and  examine

         witness:- The Court may at any stage  of

         a  suit recall any witness who has  been

         examined and may (subject to the law  of

         evidence  for the time being  in  force)

         put  such  question to him as the  Court

         thinks fit."

     6.   The  power  of  the  Court  under  this  Rule  is

discritionary, but it ought to be exercised  with  greatest

care only in exceptional circumstances.  In this case,  the

petitioner has mentioned in the affidavit filed in  support

of  the  said I.A.s that he failed to put certain important

questions (tHf;fpw;F njitahd rpy Kf;fpakhd nfs;tpfs;  FWf;F

tprhuidapd;nghJ  tpLgl;Ltpl;ld) and hence  to  re-open  the

evidence of PW6 and recalling him are necessarily required.

The  court  below  found  that  the  petitioner  was  given

sufficient opportunity and hence, it is unwarranted to  re-

open  the  evidence and recall the witness, as required  by

the petitioner herein.

     7.   When  a witness was cross-examined at length  and

no   request   has  been  made  to  defer  further   cross-

examination,  later  a request is made for  further  cross-

examination  of a witness, refusing the same is  justified.

Moreover, the power of the Court under Order 18 Rule 17 CPC

to recall and examine a witness at any stage of the suit is

to  be  exercised in exceptional circumstances.   Where  no

exceptional circumstances have been made out and unless the

reason given by the trial judge could be described as  moon

shine, flimsy or irrational stemmed from any oblique motive

or  purpose,  the  rejection of the application  cannot  be

called  as non-judicial approach and the High Court  cannot

interfere.   In this context, we look into Section  165  of

the Evidence Act, which is as follows:

               "165.     Judge's  power  to   put

         questions  or  order  production.-   The

         Judge  may,  in  order  to  discover  or

         obtain  proper proof of relevant  facts,

         ask  any  question he  pleases,  in  any

         form,  at  any time, of any witness,  or

         of  the parties, about any fact relevant

         or   irrelevant;  and  may   order   the

         production  of  any document  or  thing;

         and   neither  the  parties  nor   their

         agents  shall be entitled  to  make  any

         objection   to  any  such  question   or

         order,  nor,  without the leave  of  the

         Court,   to  cross-examine  any  witness

         upon  any answer given in reply  to  any

         such question;

     8.   In  other angle, when we look into the provisions

of  Order 18 Rule 17 CPC read along with the provisions  of

Section  165 of Indian Evidence Act, it is clear  that  the

power  to  recall and re-examine a witness  is  exclusively

with  that of the Court trying the suit.  The trial  court,

in   this  case  felt  that  re-open/recalling  of  PW6  is

unwarranted.  Incidentally, the time of six months  granted

by  this  Court for the disposal of the said suit was  also

over.

     9.   In view of the above, the reasons assigned by the

trial  court for dismissing the applications for  reopening

the  evidence  and  to  recall  PW6  are  perfectly  valid.

Interference of this is not warranted. 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

                              

                     DATED : 16/11/2007

                              

                           CORAM :

                              

         MR. JUSTICE A. KULASEKARAN

                              

            C.R.P. (PD) Nos.3563 & 3564 of 2007

                             and

                     M.P. No.1 of 2007

V. Shanmugam   V S. Umamaheswaran             

Citation: AIR 2008 (NOC) 646 Mad

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Whether court should rely on affidavit of witness on point of possession if he is not cross examined?

When the hearing of these appeals commenced, Sri Krishnanunni, learned Senior Counsel pointedly referred to paragraph 7 of the judgment under appeal and contended that the court below had erred in concluding that the evidence attempted to be tendered by the appellant herein as the plaintiff, which were in the form of affidavits sworn to by certain other persons, was incapable of credence because they were not supported by the deposition of those who had allegedly sworn to the said affidavits. The learned Senior Counsel makes these submissions referring to six numbers of affidavits, alleged to have been sworn to by certain persons who claimed that the appellant was in possession of the plaint schedule properties and that they had personal information of such factum. The court below refused to accept those affidavits in evidence because they were not spoken to by the persons who had sworn to such affidavits. The court below appears to have noticed that serious objections were raised to the marking of those affidavits by the respondents who claimed that such affidavits cannot be taken on record without first examining the alleged deponents who had sworn to it and without them being offered an opportunity of cross examining such persons. Sri Krishnanunni, learned Senior Counsel alluded to Order XXXIX Rule 1 and asserts that, as per its terms, a fact can be proved by affidavit and that it is not necessary that it should be deposed to by the persons who had sworn to them.

8. We have examined this submission with great thought but are afraid that we do not find legal sustenance for this submission on account of the provisions contained in Order XIX of the Code of Civil Procedure relating to affidavits. As per the provisions of this Order, which is a general Order relating the all kinds of affidavits in lieu of evidence, the court may, at any time, for sufficient reason order that any particular fact or facts may be proved by affidavits on such condition that the court may think reasonable. That being so, what is material is the proviso to Order XIX Rule 1, which says that where it appears to the court that either party bona fide desires the production of a witness for cross examination and that such witness can be produced, an order shall not be made authorising the evidence by such witness to be given by affidavit.

9. In the case at hand it is undisputed that serious objections were raised by the respondents herein against the acceptance of the six affidavits produced by the appellant in support of his claim that he was in possession of the plaint schedule properties. When such serious objections were raised, it was incumbent upon the person, who produced such affidavits, to make available the deponents of such affidavits for cross examination under the proviso to Order XIX Rule 1. This not having been done and the appellant not having discharged the onus of producing the deponents of the affidavit, who could have easily spoken about those affidavits, we are certain in our view, that the court below was right in not accepting those affidavits on record.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

F.A.O. Nos. 53 and 55 of 2017

Decided On: 29.06.2017

 K.P. Shibu

Vs.

P. Rajammal and Ors.

Hon'ble Judges/Coram:

P.N. Ravindran and Devan Ramachandran, JJ.

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Whether memory card produced by accused during cross examination of witness can be exhibited?

 Trial court when confronted with said position was required to take the memory cards and CD and also to mark as exhibit tentatively so as to avoid hampering of progress of the trial. Hon'ble Supreme Court in me judgment rendered in the case of Bipin Shantilal Panchal v. State of Gujarat & Anr., MANU/SC/1529/2001 : 2001 (2) Supreme 65 : (AIR 2001 SC 1158, paras 12 to 15), has ruled that whenever an objection is raised during evidence taking stage regarding admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit. It shall be advantageous to quote paras 13 to 16 of the said judgment:

"13. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.

14. When so recast, the practice which can be a better substitute is this:Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)

(Emphasis supplied)

15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.

16. We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence.

(Emphasis added)

7. The trial court should have allowed to play the Laptop so as to contradict the witness with his earlier statement in order to enable him to admit or deny the same. It along with exhibit would remain tentative.

8. At the stage of cross-examination for contradicting PW (2), the defence should have been allowed to play the Laptop and even prayer for placing on record the memory cards and CD should have been granted which would remain subject to objection and a necessary note to that extent should have been recorded, as is permissible in view of the law laid down by the Hon'ble Supreme Court in Bipin Shantilal Panchal's case (MANU/SC/1529/2001 : AIR 2001 SC 1158), as referred above.

IN THE HIGH COURT OF JAMMU AND KASHMIR

561-A No. 72 of 2015

Decided On: 24.05.2016

 Sultan Mir and Ors. Vs. State of J. & K.

Hon'ble Judges/Coram: Mohammad Yaqoob Mir, J.

Citation: AIR 2017 J & K 9

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How to appreciate evidence of witness if he is not cross examined on particular point?

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

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What will be effect of non cross examination of witness with respect to particular fact?

Moreover, there was no effective cross-examination made on the plaintiff’s
witnesses with respect to factum of execution of sale deed, PW.1 and PW-2 have not
been cross examined as to factum of execution of sale deed. The cross-examination is a
matter of substance not of procedure one is required to put one’s own version in crossexamination
of opponent. The effect of non cross-examination is that the statement of
witness has not been disputed. The effect of not cross-examining the witnesses has been
considered by this Court in Bhoju Mandal & Ors. v. Debnath Bhagat & Ors. AIR 1963
SC 1906. This Court repelled a submission on the ground that same was not put
either to the witnesses or suggested before the courts below. Party is required to
put his version to the witness. If no such questions are put the court would presume that
the witness account has been accepted as held in M/s. Chuni Lal Dwarka Nath v.
Hartford Fire Insurance Co. Ltd. & Anr. AIR 1958 Punjab 440. In Maroti Bansi Teli v.
Radhabai w/o Tukaram Kunbi & Ors. AIR 1945 Nagpur 60, it has been laid down that
the matters sworn to by one party in the pleadings not challenged either in pleadings orcross-examination by other party must be accepted as fully established. The High Court
of Calcutta in A.E.G. Carapiet v. A.Y. Derderian AIR 1961 Cal. 359 has laid down that

the party is obliged to put his case in cross-examination of witnesses of opposite party.
The rule of putting one’s version in cross-examination is one of essential justice and not
merely technical one. A Division Bench of Nagpur High Court in Kuwarlal Amritlal v.
Rekhlal Koduram & Ors. AIR 1950 Nagpur 83 has laid down that when attestation is not
specifically challenged and witness is not cross-examined regarding details of
attestation, it is sufficient for him to say that the document was attested. If the other side
wants to challenge that statement, it is their duty, quite apart from raising it in the
pleadings, to cross-examine the witness along those lines. A Division Bench of Patna
High Court in Karnidan Sarda & Anr. v. Sailaja Kanta Mitra AIR 1940 Patna 683 has
laid down that it cannot be too strongly emphasized that the system of administration of
justice allows of cross-examination of opposite party’s witnesses for the purpose of
testing their evidence, and it must be assumed that when the witnesses were not tested in
that way, their evidence is to be ordinarily accepted. In the aforesaid circumstances, the
High Court has gravely erred in law in reversing the findings of the first Appellate Court

as to the factum of execution of the sale deed in favour of the plaintiff.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4816 OF 2016

Muddasani Venkata Narsaiah V  Muddasani Sarojana

Citation:(2016) 12 SCC 288

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