Evidentiary
value of a partially cross examined witness
The
examination of witness and their cross examination before courts of law has always
been considered as a quintessential elements of justice system. In order to
unravel truth or to prove a case, testimony of witness/es shall have to be
appreciated in the touchstone of law and their examination in chief and cross
examination should be seen in that perspective. In fact, by virtue of cross
examination of witnesses, the contesting party can prove or assail the case set
out by the rival parties, as the case may be. The evidence in a case therefore
attains paramount significance.
However, what
if the evidence affidavit is filed and tendered by a witness, but the witnesses
were not cross examined, or, the witnesses were only partially cross examined
in one or two times, but the cross examination remained inconclusive. Whether
the evidentiary value of even partially cross examined witness shall have no
relevance, unless , it is concluded.? The discussion herein relates to the
aforesaid aspect.
The
Madras High Court in G.Balaji vs Saravanasamy in CRP (PD) 2182 of 2019 relied
upon the following judgments of the said high court in a case
reported as MANU/TN/3189/2010 and CRP(PD) (MD) No.1132 of 217 in Rajendra
Vs Swaminathan and Antony Matilda Vs Vairamuthu C.R.P.(PD)
(MD) No.1132/2017 it is held that, when the opponent was not given the
opportunity to cross examine the proof witness or when the witness avoids cross
examination, the evidence of such witness shall not remain on record and if the
plaintiff/witness on several occasions
absented himself for cross examination and failed in to subject himself
for cross-examination, then his evidence shall not be retained on record and
shall be eschewed, otherwise the spirit of adversarial system of law will
become meaningless.
The
another dimension, in such a situation could also be that as long
as the witness was elaborately cross examined on one or two occasions, it may not
be necessary to eschew the entire evidence. It's probative value can be looked
into at the time of final hearing. The reference in this regard could be have
in AIR 1999 SC 1441, in Vidhyadhar Vs Manikrao 2009(4) TLNJ
217 (Civil), D.F.Philips vs. Damayanthi Kailasam and Others; 2016 (4) CTC
158, Thomas and another vs. Thiyagarajan; 2018 (3) TLNJ 717 (Civil).
In Vidhyadhar (Supra)
it is held that:
“16. Where a party to
the suit does not appear into the witness box and states his own case on oath
and does not offer himself to be cross examined by the other side, a
presumption would arise that the case set up by him is not correct as has been
held in a series of decisions passed by various High Courts and the Privy
Council beginning from the decision in Sardar Gurubakhsh Singh Vs
Gurdial singh & Anr. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and
Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand
Pandharinath Chaudhary Vs Radhabai in Krishnarao Deshmukh AIR
(1931) Bombay 97. The Madhya Pradesh High
Court in Gulla Kharagjit Carpenter Vs
Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar
Gurubakhsh Singh case (supra). The Allahabad High Court in Arjun Singh Vs
Virender Nath & Anr held that if a party abstains from entering the witness
box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab &
Haryana High Court in Bhagwan Das Vs Bishan Chand & Ors , drew a
presumption under Section 114 of the Evidence Act against a party who
did not enter into the witness box.”
The Madras High Court in D.F.Philips
(Supra) had observed as follows:
“26. In ordinary
circumstances, evidence not tested by cross examination has no probative value.
There should be an opportunity to the opposite party to cross examine the
witness. Things would be different in case the opportunity to cross examine was
not availed of by the opposite party. Evidence of a witness given in chief
without subjecting such evidence for cross examination on account of death of
the witness is also permissible. However, its probative value would be very
little.
27. Similarly, question
would arise as in the subject case, about the evidence receded inconclusive.
The evidence recorded in cases where cross examination was not done completely
cannot be discarded altogether. It all depends upon case to case and no uniform
rule of general application could be made in such matters. In cases wherein
cross examination was practically completed and the witness was not in a
position to subject himself for further cross examination on account of illness
or otherwise, or on account of other justifiable reasons, the probative value
of such evidence has to be considered by the Court. Section 33 of the
Evidence Act permits the evidence given by a witness in a judicial proceeding
or a later stage of the very same judicial proceeding, the truth of the facts
which was elicited during such examination, when the witness was dead or cannot
be found or was incapable of giving evidence or in case the witness was kept
out of the way by the adverse party. However, the proviso to the said Section
also provides that the adverse party in the first proceeding must have the
right and opportunity to cross examine him so as to use the evidence so
tendered in the subsequent proceeding or in later stage of the same proceeding.
Therefore, everything depends upon the peculiar facts of the said case. If the
failure to face the further cross examination was involuntary, it stands in a
different footing.
28. There is no provision for eschewing the incomplete evidence of
a witness. The evidentiary value or probative value of such evidence is a
matter to be considered by the trail Court, Situations would arise where on
account of the less favourable answers given in the initial stage of cross
examination, the witness may avoid the box on subsequent occasions. In such
circumstances, the trail Court is justified in forming an opinion about the
probative value of such evidence in the peculiar factual background. In all
cases where there was no deliberate attempt on the part of the witness to avoid
cross examination, evidence would be admissible but its probative value is a
matter to be decided by the trail Court. Merely by avoiding further cross
examination, it cannot be said that the entire evidence has to be eschewed from
consideration. It is always possible for the Court to examine all the
surrounding circumstances leading to the avoidance of further cross examination
and to come to a definite conclusion as to whether it was deliberate act on the
part of the witness.”
Keeping in
view the aspects as elucidated above in G Balaji (Supra) it is held as under:
9. All the above cases
pertain to incomplete evidence of a defendant's witness. Naturally, the
defendant puts down his defense by way of written statement either denying
averments made in the plaint as a whole or admitting to certain facts generally
or specifically. He lets in evidence to disprove the case projected by the
plaintiff and the evidentiary value of the plaint documents. When he underwent
cross examination to a considerable extent, but
http://www.judis.nic.in could not complete the same due to certain
unavoidable circumstances, Courts cannot reject entire evidence, but shall take
into consideration its probative value, while deciding the case, more so, when
the plaintiff evades or avoids and deliberately delays completion of evidence.
On the other hand, a case projected by the plaintiff, shall be based on
introduction of facts through plaint averments, supported by oral and
documentary evidence. It can be controverted only through cross examination and
the veracity of the evidence can be tested by other side. Plaintiff being
Dominus litis spearheads the litigation. Onus is more on him to prove the case,
unless the burden is shifted to opposite side. In that process he must be ready
and prepared and show that he is always available and willing to complete the
evidence. In spite of his readiness, if it is shown that the cross examination
was avoided or delayed at the instance of the opposite party, in such circumstances,
probative value of the available evidence would be taken into consideration”.
11. In any suit, subject
to exceptions, Plaintiff being the Dominus litis is bound to prove his case, as
observed supra. Particularly in a suit for injunction, http://www.judis.nic.in material
evidence, major portion of which, in all probabilities, fall within the
personal knowledge of the plaintiff, which plays a predominant role. All other
witnesses would corroborate the case of the plaintiff. The evidence of the Plaintiff,
as such is very crucial to prove his case. Such evidence shall be complete and
it becomes complete only upon completion of cross examination by other side.
Holding the precedents and the ratio at the back of the mind, the conduct of
the Plaintiff, if seen, admittedly, the materials placed before the court shows
that the suit was restored on file after it having been dismissed for default.
After having filed the proof affidavit, the Plaintiff had taken his own time to
mark the documents. He absented himself for three hearings before marking
Exhibits A1- A6 and had taken time to mark further documents, but could not do
so, for want of his appearance before the court for three consecutive hearings.
An endorsement was by the counsel on his behalf and in his absence that no
further marking of documents. The matter was posted for Cross Examination on
03.07.2018 and adjourned due to his non appearance to 06.07.2018 and he was
cross examined in part. Again he was absent for three consecutive hearings and
cross examined further on 07.09.2018 in part and the matter was adjourned for
further cross examination. Again he absented himself for eight consecutive
hearings viz., 19.09.2018, 03.10.2018, 09.10.2018, 31.10.2018, 08.11.2018,
21.11.2018 and 04.12.2018. Since he did not appear
http://www.judis.nic.in PW1 evidence was closed. It is pertinent to note
that on all hearings counsel for both sides were present and participated in
proceedings.
What emerges therefore is
that the conduct of the Plaintiff is to be seen i.e if plaintiff , after having
filed the proof affidavit and after having marked the documents, remained
absent for cross examination that may amount to denial of opportunity to the
opponent to disprove the claim and render the evidence as complete one. Incomplete
evidence of a witness who has failed to subject himself for cross examination
shall not be retained on record. Even though there is no provision to eschew
the evidence, the evidence of the Plaintiff not tested by cross examination on
account of his non appearance, does not even have the probative value, if the
incompleteness is attributable to the Plaintiff himself. The evidence can be
used at the later stage of the proceeding as well, since, as per Section
33 of Evidence Act entails the evidence to be completed in the eyes of law.
Thus, if a witness is allowed to avoid the witness box for cross examination
after letting in evidence in chief examination his evidence cannot be retained
on record and does not merit consideration, as it will run against the spirit
of adversarial system of law.
Thus, the
basic rule is that once a witness has examined himself and tendered evidence
affidavit without having been cross examined, the evidence cannot be
considered, since, the witness has not subjected himself for cross examination,
Even when a witness was cross examined at several occasion, but the witness
failed to conclude the cross examination, then too such evidence may be
eschewed, since, the cross examination could not be completed and therefore,
the such evidence cannot have probative value or evidentiary value. However, if
the cross examinations are held substantively and the non examination of
witness cannot be attributed on him and if it emerges that the other party was
instrumental in causing delay, then, the court may still consider the evidence
as relevant, since, the witness or any such party who seeks to examine such
witnesses cannot be blamed and therefore, the evidence cannot be discarded
altogether. The Court in such a situation may take a decision based on the facts
and circumstances of the case.
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Anil K Khaware
Founder & Senior Associate
Societylawandjustice.com
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