Friday, May 9, 2025

EVIDENTIARY VALUE OF A PARTIALLY CROSS EXAMINED WITNESS

 


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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