Discuss the relevancy of evidence for proving in subsequent proceedings the truth of facts stated therein.

Question: Discuss the relevancy of evidence for proving in subsequent proceedings the truth of facts stated therein.

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Answer

The general rule of the law of Evidence is that oral evidence must be direct that is to say a fact to be proved by oral evidence must be deposed before the court by one who has firsthand knowledge of that fact. This Rule that oral evidence must be direct is incorporated under section 60 of the Evidence Act and it makes indirect or hearsay evidence inadmissible. The basis of this rule is a legal necessity as to when a person appears before court to depose about a fact of which he has direct or first hand or original knowledge, then-

1. his statement can be recorded on oath
2. the party against whom he is deposing in court will have the opportunity to cross-examine him to test his veracity
3. such witnesses are found to be deposing falsely can be subjected to a penalty of deposing false.

However, if ‘Hearsay Evidence’ were being allowed then such witness could not be put on oath neither opposite party will have the opportunity to cross-examine his testimony because whatever he will say will be based on second-hand information or hearsay fact.

Therefore law necessitates upon that oral evidence must be directly within the meaning of Section 60 of the Evidence Act.

Thus, evidence of depositions in former trials is admissible as it forms an exception to the hearsay rule under section 33, which is another exception to the rule that oral evidence must be direct. Depositions are in general admissible only after proof that the persons who made them cannot be produced before the court to give evidence.

It is only in cases where the production of the primary evidence is beyond the party’s power that secondary evidence of oral testimony is admissible. Non-compliance with the provisions of this section is not cured by the fact that counsels for the accused give his consent thereto.

Section 33 of Act provides as under:

“Evidence given by a witness in a judicial proceeding or before any person authorized by law to take it is relevant for the purpose of proving it in subsequent judicial proceedings or in latter stage of the same judicial proceedings, the truth of fact which it states when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the court considers unreasonable:

Provided

that the proceeding was between the same parties or their representatives in interest.
that adverse party in the first proceeding had the right and opportunity to cross-examine.
that the questions in issue were substantially the same in the first as in the second proceedings”

So previous deposition of witness is relevant under section 33 for proving the truth of fact stated therein when

1. That deposition is made in a judicial proceeding or before a person authorized by law to take it.
2. When proceedings are between the same parties or between their representatives in interest.
3. When the opposite party had the right and opportunity to cross-examine such witness.
4. When the issue in question is substantially the same in both proceedings.
5. When the witness is dead or cannot be found or is incapable of giving evidence or is kept out of way by the adverse party or when whose presence cannot be obtained without delay and expense.

It is an elementary right of an accused person or a litigant in a civil suit that a witness who is to testify against him should give his evidence before the court trying the case which then has the opportunity of seeing the witness and observing his demeanour and can thus form a better opinion as to his reliability than is possible from reading a statement or deposition given by that witness in a previous judicial proceeding or in an early stage of the same judicial proceeding.

Where a statute for instance The Evidence Act, 1872, makes provision for exceptional cases where it is impossible for the witness to be before the court, the court must be careful to see that the conditions on which the statute permits previous evidence given by the witness to be read are strictly proved. The previous statement of a witness not appearing in court should not be taken on record under this section without strict proof of the conditions justifying it being taken so.

In a civil case, a party can, if he chooses, waive the proof; but in a criminal case, strict proof ought to be given that the witness is incapable of giving evidence, and even the consent of the accused’s counsel cannot do away with the necessity of the court being satisfied by proof of that fact.

Such cases in which the evidence given by a witness (a) in a judicial proceeding, or (b) before any person authorized by law to take it, is relevant in a subsequent judicial proceeding or a later stage of the same proceeding are five in number, viz.

1. when the witness is dead;
2. when he cannot be found;
3. when he is incapable of giving evidence;
4. when he is kept out of the way by the adverse party; and
5. when his presence cannot be obtained without an amount of delay or expense
6. which the court considers unreasonable

The use of such secondary evidence under section 33, the Indian Evidence Act is limited by three provisions. Such evidence will be only admissible-

1. if the proceeding was between the same parties or their representatives in interest;
2. if the adverse party in the first proceeding had the right and opportunity to cross-examine; and
3. if the questions in issue were substantially the same in the first as in the second proceeding.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X