Whether Suggestions Made By Defence Counsel To Witnesses In Cross-Examination If Incriminating Binds Accused?

We are of the view from the aforesaid that the suggestions put by the defence counsel in the cross-examination of the eyewitnesses establishes the presence of PW 1 Asgar Shaikh at the scene of offence and the factum of assault could also be said to have been admitted. The reply to the suggestions answers the submission canvassed by the learned Counsel for the Appellants that PW1 Asgar Shaikh should not be believed or relied upon as there is nothing on record to indicate that he was an injured eyewitness. The defence could be said to have admitted the presence of PW Asgar Shaikh. When the aforesaid part of the cross-examination of PW1 Asgar Shaikh was brought to the notice of the defence counsel, he submitted that a suggestion put by defence counsel to a witness in his cross-examination has no evidentiary value and even if the same is incriminating in any manner would not bind the Accused as the defence counsel has no implied authority to admit the guilt of the facts incriminating the Accused. {Para 33}

34. According to the learned Counsel such suggestions could be a part of the defence strategy to impeach the credibility of the witness. The proof of guilt required of the prosecution does not depend on the satisfaction made to a witness.

38. Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the Accused and the Accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.

39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the submission canvassed on behalf of the Appellants that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any value or utility if it incriminates the Accused in any manner.

40. It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the Accused beyond reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. We are not suggesting for a moment that if prosecution is unable to prove its case on its own legs then the Court can still convict an Accused on the strength of the evidence in the form of reply to the suggestions made by the defence counsel to a witness. Take for instance, in the present case we have reached to the conclusion that the evidence of the three eyewitnesses inspires confidence and there is nothing in their evidence on the basis of which it could be said that they are unreliable witnesses. Having reached to such a conclusion, in our opinion, to fortify our view we can definitely look into the suggestions made by the defence counsel to the eyewitnesses, the reply to those establishing the presence of the Accused persons as well as the eyewitnesses in the night hours. To put it in other words, suggestions by itself are not sufficient to hold the Accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record. It is true that a suggestion has no evidentiary value but this proposition of law would not hold good at all times and in a given case during the course of cross-examination the defence counsel may put such a suggestion the answer to which may directly go against the Accused and this is exactly what has happened in the present case.

41. The principle of law that in a criminal case, a lawyer has no implied authority to make admissions against his client during the progress of the trial would hold good only in cases where dispensation of proof by the prosecution is not permissible in law. For example, it is obligatory on the part of the prosecution to prove the post mortem report by examining the doctor. The Accused cannot admit the contents of the post mortem report thereby absolving the prosecution from its duty to prove the contents of the same in accordance with law by examining the doctor. This is so because if the evidence per se is inadmissible in law then a defence counsel has no authority to make it admissible with his consent.

42. Therefore, we are of the opinion that suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the Accused.

44. During the course of cross-examination with a view to discredit the witness or to establish the defence on preponderance of probabilities suggestions are hurled on the witness but if such suggestions, the answer to those incriminate the Accused in any manner then the same would definitely be binding and could be taken into consideration along with other evidence on record in support of the same.

45. However, it would all depend upon the nature of the suggestions and with what idea in mind such suggestions are made to the witness. Take for instance in case of a charge of rape Under Section 376 of the Indian Penal Code, the statement of the Accused contained plain denial and a plea of false implication, a subsequent suggestion by the defence lawyer to the prosecutrix about consent on her part would not, by itself, amount to admission of guilt on behalf of the Accused. In cases of rape, it is permissible for the Accused to take more than one defence. In such type of cases a suggestion thrown by the defence counsel to a prosecution witness would not amount to an admission on the part of the Accused. At the same time, if the defence in the cross examination of the prosecutrix, with a view to support their alternative case of consent procure answers to the questions in the form of suggestions implicating the Accused for the offence of rape then such suggestions would definitely lend assurance to the prosecution case and the Court would be well justified in considering the same. We may give one more example of a case where the Accused would plead right of a private defence. Such a defence is always available to the Accused but although if such a defence is not taken specifically during the course of trial yet if the evidence on record suggests that the Accused had inflicted injuries on the deceased in exercise of his right of private defence then the Court can definitely take into consideration such defence in determining the guilt of the Accused. However, if a specific question is put to a witness by way of a suggestion indicative of exercise of right of private defence then the Court would well be justified in taking into consideration such suggestion and if the presence of the Accused is established the same would definitely be admissible in evidence. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1910 of 2010

Decided On: 29.03.2023

 Balu Sudam Khalde and Ors.  Vs. The State of Maharashtra

Hon'ble Judges/Coram:

Sudhanshu Dhulia and J.B. Pardiwala, JJ.

Dated: MANU/SC/0328/2023,2023 SCCONLINE SC 355

Author: J.B. Pardiwala, J.

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Should the court rely on the defence taken by the defendant if he fails to give his evidence before the court and gets cross-examined?

Having not entered into the witness box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of principles contained in illustration (g) of Section 114 of the Evidence Act.

16. As early as in 1927, the Privy Council in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. MANU/PR/0049/1927, took note of a practice prevalent in those days of not examining the parties as a witness in the case and leaving it to the other party to call that party so that the other party may be treated as the witness of the first party. Their Lordships of the Privy Council observed as under:

Notice has frequently been taken by this Board of this style of procedure. It sometimes takes the form of a manoeuvre under which counsel does not call his own client, who is an essential witness, but endeavours to force the other party to call him, and so suffer the discomfiture of having him treated as his, the other party's, own witness.

This is thought to be clever, but it is a bad and degrading practice. Lord Atkinson dealt with the subject in Lal Kunwar v. Chiranji Lal (1), calling it "a vicious practice, unworthy of a high-toned or reputable system of advocacy."

17. The true object to be achieved by a Court of justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected in all its particulars to cross-examination.

19. This decision was also relied upon by the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh MANU/MH/0063/1930 : (1930)32BOMLR924 , which observed as under:

It is the bounden duty of a party personally knowing the facts and circumstances, to give evidence on his own behalf and to submit to cross-examination and his non-appearance as a witness would be the strongest possible circumstance which will go to discredit the truth of his case.

21. The Madhya Pradesh High Court also relied upon the following observation of the Calcutta High Court in Pranballav Saha and Anr. v. Smt. Tulsibala Dassi and Anr. MANU/WB/0183/1958 : AIR1958Cal713 :

The very fact that the defendant neither came to the box herself nor called any witness to contradict evidence given on oath against her shows that these facts cannot be denied. What was prima facie against her became conclusive proof by her failure to deny.

The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. MANU/UP/0007/1971 : AIR1971All29 , held that :

the explanation of any admission or conduct on the part of a party must, if the party is alive and capable of giving evidence, come from him and the court would not imagine an explanation which a party himself has not chosen to give.

 IN THE SUPREME COURT OF INDIA

C.A. No. 1417 of 1982

Decided On: 16.03.1999

Iswar Bhai C. Patel  Vs.  Harihar Behera and Ors.

Hon'ble Judges/Coram:

Saiyed Saghir Ahmad and M.B. Shah, JJ.

Author: Saiyed Saghir Ahmad, J.

Citation: MANU/SC/0173/1999

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Procedure to be followed by court when application for delivery of interrogatories is filed

 When examined in the light of parameters laid down in the aforesaid judgments, clearly, the Trial Court has misdirected itself in rejecting the application filed by the petitioner under Order XI Rule 1 of the CPC. While deciding the said application under Order XI Rule 1 of the CPC, the Trial Court had to only consider whether answer to the said interrogatories would have some bearing on the issues involved in the case and whether the same could be necessary for fair adjudication of the dispute. The very object of the interrogatories is to know the case of the opposite party and to, therefore, shorten the trial and limit the scope of the cross-examination. The Courts should be liberal and should not be hyper-technical in allowing the use of interrogatories in a suit. Interrogatories also enable a party to obtain an admission from the opponent, which reduces the scope of trial and the cost of litigation for the parties. Once the Court comes to the conclusion that the interrogatories are relevant for proper adjudication of the case, the interrogatories are served upon the other party and the said other party has to answer the interrogatories on affidavit or objections can be raised on the ground that the said interrogatories are scandalous in nature or are not relevant or not bona fide for the purposes of the suit or on the ground of privilege. The objections on the grounds above have to be taken on affidavit. It is at that stage that the Court has to consider which of the questions in the interrogatories the party should be compelled to answer. {Para 24}

25. In the present case, the approach followed by the Trial Court in dismissing the application filed by the petitioner was completely flawed. No exercise has been undertaken to determine whether the interrogatories sought to be delivered on the respondents are relevant or necessary for fair and proper adjudication of the case. This Court is of the view that the interrogatories sought to be served by the petitioner on respondents no. 1 and 2 were germane for adjudication of the suit. Seeing the nature of relief sought in the suit viz. rendition of account with regard to the various fixed deposits made by late Mrs. Veena Paintal in the name of the petitioner, the information/documents sought by the petitioner with regard to such deposits were relevant for the issues to be decided in the suit. The information sought by way of interrogatories with regard to procedure to be followed by the bank for change in the nature of account or adding a nominee to the FDR is also very relevant in the light of the allegations in the plaint that the said fixed deposit was illegally tampered with and the name of respondent no. 1 was wrongly added.

26. The only basis provided by the Trial Court for not allowing the application of the petitioner was that the interrogatories could be put in cross-examination. The learned Trial Court failed to appreciate that the cross-examination may not be necessary in light of the answers given to the interrogatories. It is not the case of the respondents that any of the interrogatories are scandalous in nature or are irrelevant. When the aforesaid tests of ‘relevancy’ and ‘expediency’ are applied to the facts of the case, there is no doubt in the mind of the Court that interrogatories as sought to be raised in the present case should have been allowed and would have helped in reducing the time taken in trial.

 In the High Court of Delhi at New Delhi

(Before Amit Bansal, J.)

CM(M) No. 925/2019

Tara Batra  Vs Punam A. Kumar 

Decided on September 10, 2021,

Citation: 2021 SCC OnLine Del 4331

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Whether the party can confront another party's witness with the contents of pleadings or can ask to make comments or explain the party's pleadings?

 To wit, witnesses (other than the parties) have been confronted with the contents of the election petition or the written statement and asked to make comments or offer explanation as to passages therefrom, overlooking that Section 145 of the Evidence Act permits a witness being cross-examined as to previous statement made by him and not by a third person. How can a witness be confronted or asked to explain the contents of or averments made in writing or document to which he is not a party? 

Supreme Court of India

Makhan Lal Bangal vs Manas Bhunia & Ors. on 3 January, 2001

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When the court should allow or can refuse to allow questions at the time of cross-examination?

On plain reading of the said provisions, the contention of Shri Sudin Usgaonkar, learned Senior Advocate appearing for the Respondents, that the cross examination has to be restricted only to the statements made in the examination-inchief or in the pleadings cannot be accepted. It is always open in the cross

examination to put questions in order that they can nullify or establish the veracity or otherwise of the allegations made in the proceedings.

7. When the relevancy and the admissibility of a particular question is seriously raised, it is the endeavour of the Court to elicit the answer after recording the objectives. The final decision on such objectives can be decided at the end of the trial. This view has been taken by this Court in the Judgment reported in 2015 SCC Bom 2571 in the case of Neema Hingarh vs. Ashish Hingarh, wherein it has

been observed at Para 8 thus:

“8. In the case of Irfan Badshah (supra), the

learned Single Judge of Delhi High Court considered

Section 148 of the Indian Evidence Act, 1872 as also

the decision of the Apex Court in the case of Special

Cell, New Delhi v. Navjot Sandhi alias Afshan Guru,

(2003) 6 SCC 641, wherein it was observed thus,

“… the endeavour of the Court wherever

there is a serious dispute with regard to the

relevancy and admissibility of a question

should be to elicit the answer of the witness

after noting the objections. The final

decision to reject particular evidence as

irrelevant or inadmissible can be if required

taken at the end of the trial. This procedure

benefits even the appellate court as in a

case where the question is disallowed or

excluded from evidence and the appellate

court feels that the same was essential, it is

at this stage not required to remand back

the matter for re-examination of the witness.

Cross-examination is the main tool of an

accused to test the veracity of the evidence

of the witness and discredit his

trustworthiness. Moreover, this does not

mean that the trial court will not exercise its

discretion in disallowing irrelevant

questions.”

In such circumstances, I find that the procedure followed by the

learned Trial court refusing to allow the questions at the time of the cross examination, is not at all justified, unless the Court comes to the conclusion that the questions are inter alia those which a party cannot be forced to answer and are patent erroneous and put to delay the proceedings and for oblique purpose or have

no nexus with the dispute between the parties.

As a general rule, the Court would not be justified in imposing restrictions in the cross examination of a witness. But however the Court may in the course of the trial come to the conclusion that some of the cross examination was unnecessary and, in such a case, the Court has powers to control the cross examination of a witness by the Counsel but such power has to be exercised in a reasonable way. As such, the Trial Court should see that the cross examination is not conducted in a rumbling way or that the

questions are impermissible under the provisions of the Indian Evidence Act.

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 411 OF 2015

Mr. Ajit Sukhijia Vs Mr. Edgar Francisco Valles,

Coram :- F. M. REIS, J

Date : 9 th July, 2015.

Citation: 2016(2) ALLMR 447

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Whether disciplinary authority can rely on statements of witnesses recorded in preliminary enquiry if enquiry officer has not permitted delinquent to cross-examine them?

In the aforesaid backdrop, we have to consider the most relevant issue involved in this case. Admittedly, the Enquiry Officer, the High Court on Administrative side as well on Judicial side, had placed a very heavy reliance on the statement made by Shri C.B. Gajjar, Advocate, Mr. G.G. Jani, complainant and that of Shri P.K. Pancholi, Advocate, in the preliminary inquiry before the Vigilance Officer. Therefore, the question does arise as to whether it was permissible for either of them to take into consideration their statements recorded in the preliminary inquiry, which had been held behind the back of the Appellant, and for which she had no opportunity to cross-examine either of them.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2668 of 2005

Decided On: 18.03.2013

 Nirmala J. Jhala Vs.  State of Gujarat and Ors.

Hon'ble Judges/Coram:

B.S. Chauhan and F.M. Ibrahim Kalifulla, JJ.

Author: B.S. Chauhan, J.

Citation:MANU/SC/0257/2013,AIR 2013 SC 1513

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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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Bombay HC: Electronic evidence cannot be used for cross-examination without a certificate as per S 65B of Evidence Act

 Emphasizing this facet of sub-section (4) the decision in Anvar holds that the requirement of producing a certificate arises when the electronic record is sought to be used as evidence. Reliance was placed on the earlier decision in Union of India v. CDR Ravindra V Desai [(2018) 16 SCC 273] wherein it was emphasised that non-production of a certificate under Section 65-B of Evidence Act on an earlier occasion is a curable defect. Reliance was also placed on the judgment of the Supreme Court in Sonu @ Amar v. State of Haryana [(2017) 8 SCC 570], wherein it was held that the crucial test was whether the defect could have been cured at the stage of marking the document. Applying the said test it was held that if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. Thus, though it may be considered that the production of certificate is a curable defect; yet, accused in present case should explain from whose custody he has procured the said CCTV Footage. Unless the basic authenticity of the said document/electronic record is shown, it can not be even used in cross-examination.

20. The procedure adopted by learned Magistrate was wrong. When the accused had not explained any reason in his application Ex.38, which was for production of document; there was no question of allowing the informant to re-call for cross. Further the learned Magistrate has failed to see that he had not allowed the production of document first, but then went on to re-call the witness in advance. Neither in application Ex.38 nor in Ex.37, the accused has disclosed the source from where he has secured the CCTV footage. There was no attempt on his part earlier to call the owner of the said shop, where the CCTV cameras are installed. He also says that he has downloaded the said footage on the CD and has produced it. That means the manner in which the copy of the original record was made has not been explained. It appears that the CD has been got produced without its transcription. When the authenticity of the document was raised, then at least certain prima facie compliance ought to have been got done, before re-calling the witness by the learned Magistrate. When all these facts and circumstances were not observed by the learned Magistrate, though in normal course it ought not to have been observed, it will have to be observed that the impugned orders below Ex.37 and 38 are sheer example of non-application of mind and non-adherence of basic provisions of law. They are patently illegal, hence, deserve to be set aside by invoking the constitutional powers under Article 226 and 227 of Constitution of India and inherent powers of this Court under Section 482 of the Code of Criminal Procedure.

In the High Court of Bombay,Aurangabad Bench

(Before Vibha Kankanwadi, J.)

X   Vs  State of Maharashtra 

Criminal Writ Petition No. 1579 of 2019

With

Criminal Application No. 3214/2019

Decided on January 13, 2020

Citation: 2020 SCC OnLine Bom 143

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Whether Suggestions in cross examination have evidentiary value?

Let me at this stage take a note of one very important aspect. The plaintiffs could be said to have satisfactorily discharged the burden open it for proving the issue No. 2 in the affirmative. The plaintiff in her cross examination-in-chief has stated as to the rash and negligent manner in which the firing was opened by the Army and how the same led to death of her husband. She has made out a case of wrongful deprivation of the life of the deceased resulting into consequence of liability on the part of the State to pay the compensation. The point, I would like to take note of, is that except putting suggestions in the cross examination, the defendants have not been able to discern anything from the evidence of the plaintiff on the strength of which the issue No. 4 could have been in the affirmative. It is a settled position of law that mere suggestions are not sufficient to dislodge or disprove the case of the plaintiff. Suggestions in cross examination have no evidentiary value. In absence of any evidence, nor any material traced in the cross-examination in support thereof, the findings so far could not have been answered in the affirmative by the Trial Court as well as by this Court in the First Appeal.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Letters Patent Appeal No. 473 of 1996 in First Appeal No. 5952 of 1995

Decided On: 04.08.2017

Umedmiya R. Rathod and Ors. Vs. State of Gujarat

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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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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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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

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How to appreciate evidence if opponent fails to put up his essential and material case in cross-examination?

The testimony of PW-1 is not contradicted or undermined. No suggestion is put to PW-1 that his deposition regarding the contract of guarantee and/or the further particulars he was called upon to provide regarding the contract of guarantee were false.

Likewise no suggestion is put to PW-1 that there was no supplies made to M/s. Umesh Enterprises or its customers. This is extremely pertinent given the defence taken by the defendant in the written statement. There is no cross-examination of PW-1 as to how he came into possession of the aforementioned security cheque (Exhibit P-8) though it is the case of the defendant that PW-1 misappropriated the said cheque. This is of significance given the nature of the allegations raised by the defendant against the plaintiff in paragraph 18 of the written statement. The failure to confront PW-1 with the defendant's affirmative case must go against the defendant. In MANU/WB/0074/1961 : AIR 1961 Cal 359 A.E.G Carapiet v. A.Y. Derderian paras 8 & 9 read as under :-

"8. Failure to put the important and crucial part of the case to the witnesses coming to prove testamentary capacity must be held against the respondents. It is all the more so because the case of witness Venkat Ramiah is that as early as in October, 1956 he had told this story at Poona to Mr. Aratoon and the learned Counsel Mr. Ganguli. If that was so, then there can be no doubt that this case would have been put to the doctors and nurses who were being examined on commission in Poona itself. It is also strange why then the Respondents did not have the evidence of this witness Venkata Ramiah immediately on commission at Poona and why he was kept up the sleeves to be played as a last trump as a last witness in the case when the entire evidence on the case of the propounder had been made and concluded. Lastly this course is all the more reprehensible here because witness Venkat Ramiah admits that on all his visits to the testator's room in the nursing home he found the wife present (Q.81) and if that is so then if the wife was put that case she might have denied but by keeping back this case from her, she was denied the necessary opportunity to do so, leading to failure of justice in this case.

9. The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponents witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witness and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated."

IN THE HIGH COURT OF BOMBAY

Suit No. 1947 of 2008

Decided On: 07.12.2016

 Vinergy International Pvt. Ltd. Vs. Dimple Dineshbhai Shah

Coram:K.R. Shriram, J.

Citation: 2017(1) ALLMR581

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What will be effect of not cross-examining a witness on a particular fact/circumstance ?

The effect of not cross-examining a witness on a particular fact/circumstance has been dealt with and explained by this Court in Laxmibai (Dead) Thr. L.Rs. & Anr. v. Bhagwanthuva (Dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 observing as under:

“31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined inSection 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses.” (Emphasis supplied) (See also:Ravinder Kumar Sharma v. State of Assam & Ors., AIR 1999 SC 3571; Ghasita Sahu v. State of Madhya Pradesh, AIR 2008 SC 1425; and Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181)

Supreme Court of India

Gian Chand & Ors vs State Of Haryana on 23 July, 2013

Bench: B.S. Chauhan, S.A. Bobde

Citation;(2013)14 SCC 420

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Whether admission given by witness on random suggestion given by counsel can be relied on?

 The interrogatories would suggest that the marriage had taken place in that year 1955. It may be before May or after May, 1955, nothing is clinching. Adverting to the suggestion put in the course of cross-examination to the respondent by the Counsel for the petitioner, it is so obvious that he had not taken instructions from the petitioner. The petitioner in her evidence has clearly stated that she did not remember as to when the marriage took place. It is for that reason that the date of marriage was not obviously mentioned in the petition nor in the reply statement filed by the Counsel for the petitioner. All of a sudden, however, in the course of cross-examination of the respondent, the counsel has put a random suggestion whether the marriage had not taken place in the year N57. It is obvious from reading the evidence of the petitioner and the interrogatories that this suggestion eminates from the lawyer and was not rooted in the knowledge of the petitioner. Therefore, no evidentiary value can be attached. Besides a mere suggestion made and denied is not evidence at all. -The petitioner has stated in the course . of her evidence thus :

"I do not remember on what date and during which year I was proposed to the respondent."

Again she has stated:

"I have forgotten the date of my marriage I do not know the name of Purobit. Sundaramma had arranged the Purohit, The Purobit was a Brahmin. It is in this context that we have to appreciate the suggestion put by the Counsel to the respondent as also the so called admission made by the respondent. Having clearl stated that she does not remember as to the date or year of the marriage, it is elicited frorn her in the further cross-examination that the marriage took place after the respondent retired. This is what she has. stated:

"Respondent7 was retired by then". It may be seen that this sentence occurred in the same para in the beginning of which she has stated "I have forgotten the date of marriage." It is further elicited from her "my father presented a suit and silver articles to the respondent. It may be about two years earlier to the marriage, the respondent had retired from the service". Thus, it is clear that these stray sentences elicited in the cross-examination could hardlv be construed as admission. The Supreme Court of India, in the case of Chikkam Koteswara Rao v. Chikkam Subbarao, speaking through Justice Hegde, as he then was, has observed in this behalf thus:

"This admission must be read along with the evidence given by him in his chief examination ............

If we read these statements along with his other evidence and in a harmonious manner, it is clear that what the appellant admitted was that the acquisition in question was made by his father on his behalf and the consideration for the same was paid by his father from out of the appellant's private funds that were in the hands of his father...........

Thus, the Supreme Court has pointed out that before the right of a party can be considered to have been defeated on the- basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should not be any doubt or ambiguity about the alleged admission and to examine whether there is ambiguity in the admission, it would be necessary for the Court to read the other parts of the evidence and the stand taken by him in the pleadings. Considering in that way, as pointed out above, it becomes obvious that the so called admission is not an admission at all. 

Karnataka High Court

Parameshwari Bai vs Muthojirao Scindia on 29 July, 1980

Equivalent citations: AIR 1981 Kant 40, ILR 1981 KAR 78

Bench: G Sabhahit, D V Rao

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Whether stray sentences elicited in cross-examination can be construed as admission?

Thus, it is clear that these stray sentences elicited in the cross-examination could hardlv be construed as admission. The Supreme Court of India, in the case of Chikkam Koteswara Rao v. Chikkam Subbarao, speaking through Justice Hegde, as he then was, has observed in this behalf thus:

"This admission must be read along with the evidence given by him in his chief examination ............

If we read these statements along with his other evidence and in a harmonious manner, it is clear that what the appellant admitted was that the acquisition in question was made by his father on his behalf and the consideration for the same was paid by his father from out of the appellant's private funds that were in the hands of his father...........

Thus, the Supreme Court has pointed out that before the right of a party can be considered to have been defeated on the- basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should not be any doubt or ambiguity about the alleged admission and to examine whether there is ambiguity in the admission, it would be necessary for the Court to read the other parts of the evidence and the stand taken by him in the pleadings. 

Karnataka High Court

Parameshwari Bai vs Muthojirao Scindia on 29 July, 1980

Equivalent citations: AIR 1981 Kant 40, ILR 1981 KAR 78

Bench: G Sabhahit, D V Rao

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What remedy is available to party who is not satisfied with report of court commissioner?

It has also been held by this Court that merely because a Court Commissioner is appointed, it will not prejudice the interest of either of the parties. It has been held that if any of the parties is aggrieved by the report of the Court Commissioner, an opportunity would be available to that party to cross examine the Court Commissioner and to point out as to how his conclusions were not correct. It has further been observed that the party who was not aggrieved would also prove how his conclusions are correct.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6497 of 2009

Decided On: 14.03.2011

Appellants: Kolhapuri Bandu Lakade Petitioner
Vs.
Respondent: Yallappa Chinappa Lakade, Decd., thru' Pooja @ Poojari Y. Lakade and Ors.

Hon'ble Judges/Coram:
B.R. Gavai, J.

 Citation: 2011(3)ALLMR599, 2011(3)BomCR807, 2011(3)MhLj348

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Tips for successful cross examination

An outline is an excellent tool for making sure you don’t overlook any important subjects during a deposition. But don’t let this tool become a trap: Be in the moment and be ready to venture outside of your outline.

Although most advocate have an outline of the questions they wish to address during a deposition, advocates vary considerably in how much they “map out” the deposition in advance. Remember that a deposition outline is a tool, not a script. Even though you’ve drafted an outline of the deposition, be ready for the likelihood that the deposition will deviate from the plan.

Follow these two contradictory dictates:

1. Stick to the plan until the facts are established. Probe the facts on which crucial claims and defenses are based. Don’t let evasive answers, overly general responses, or obstructionist conduct deter you from asking further questions to learn these facts. A common failing of beginning advocate is to blandly accept each witness’s answer and go on to the next step in the outline. Don’t allow the witness to escape so easily; break down each answer into follow-up questions.

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How to appreciate Court Commissioner's report and his opinion?

 The next grievance of this petitioner is that the plan and report of the Commissioner cannot be admitted in evidence. In regard to it, this objection is obviously made without fully comprehending the scope of the relevant provisions of R. 10 which has been reproduced above. The Commissioner's report does not automatically become evidence and the parties are entitled to object to the commissioner's report and prove their objections by examining the commissioner or other witnesses: -- 'Harcharan Das v. Danpat Mal', AIR 1917 Lah 57 (E); -- 'Ajodhyaprasad Singh v. Kamal Narasin Singh'-, AIR 1917 Pat 278 (F) and -- 'Sitarama v. Ramprasad Ram', AIR 1915 Cal 280 (G). It is within the discretion of a Judge to accept the report of Commissioner: -- 'Sone Kuar v. Baidyanath' AIR 1926 Pat 462 (2) (H) -- 'Jadavendra v. Gajendra Naraindas', AIR 1919 Cal 946 (I). The Commissioner's report and the opinion he expressed on the evidence is merely a piece of evidence to be considered by the Judge. It does not become 'ipso facto' evidence. 'Jnanda Sundari Rai v. Pramada Sundara Rai', AIR 1934 Cal 116 (J). The person behind whose back the Commissioner has been appointed is entitled to cross-examine him. 'Ramnath Ramakrishna v. Wasudeo', AIR 1947 Nag 56 (K). Though under Order 26, Rule 10 the Commissioner's report forms part of the record and it is incumbent on the Court to consider the contents -- 'Venkatarama Aiyar v. Ponnusami Padayachi', AIR 1935 Mad 918 (L).

Madras High Court

In Re: P. Moosa Kutty vs Unknown on 16 December, 1952

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Whether a party must produce an original Document for Cross-Examination Of The Witness Of the Other Party?

 If the document is produced for the cross-examination of the witness of the other party, the document could be used for cross-examination if the original is produced in the Court. In the present case the copy of the document i.e. the reply to the notice of the Gram Panchayat was already there. The original document was with the defendant's counsel and was shown in the Court but the trail court observed that it is not necessary to produce the document when its copy was already on the record, as secondary evidence could also be availed of. It is really curious how the secondary evidence could be produced when the original was available and was on the file of the defendant's counsel. To that extent, the observations of the trial court are wholly unwarranted. No secondary evidence could be produced when the original exists and is available for production in the Court.

Rajasthan High Court

Pukh Raj vs Gram Panchayat Sanchore on 12 March, 1978

Equivalent citations: 1978 WLN UC 55

Bench: M Joshi

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