A, a witness dies after examination-in-chief but before his cross-examination. Is the evidence of A given “in-chief” admissible? Give reasons and also refer to case law, if any, on the point?

Question: A, a witness dies after examination-in-chief but before his cross-examination. Is the evidence of A given “in-chief” admissible? Give reasons and also refer to case law, if any, on the point?

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Answer

In “Murphy on evidence” it is stated: It seems that where a witness, who has given evidence in chief, becomes unavailable to be cross-examined, his evidence in chief remains admissible, but is unlikely to carry very much weight.

In the case before Andhra HC of Somagutta Sivasankara Reddy v. Palapandla Chinna Gangappa [2001], the witness has died after examination in chief. He, therefore, could not be produced for cross-examination. The court thus discussed the prominent issue as of the current case at hand that:

What would be the effect of non-production of a witness for examination after the examination in chief is over owing to the death or illness of the concerned witness? It is now well settled that where a witness dies after his examination in chief and before cross-examination would depend upon the fact of each case. There are cases where despite death, the statements made in the examination in chief had been taken into consideration and there are cases where the same was excluded from consideration.

Section 33 of the Evidence Act, 1872 reads thus:

Relevancy of certain evidence for proving, in a subsequent proceeding, the truth of facts therein stated. 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, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts 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 if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:

Provided-

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

Explanation.-A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

Thus, the evidence given by a witness, although he had not been cross-examined may be admissible in evidence. However, the weight or probative value attached to such evidence would depend upon the facts and circumstances of each case. Whether such evidence should be taken or not would depend upon the fact as to how far and to what extent the deposition has been made; whether the witness has spoken about the relevant facts and the stage of examination in chief is also relevant.

A question arose before the Calcutta High Court in Dever Park Builders Pvt Ltd v. Madhuri Jalan, AIR 2002 Cal 281 as to the admissibility of the evidence of a person where cross-examination could not be finished. The evidence of the defence witness was being recorded on commission.

His cross-examination could only be partly held because of his death. The court was of the view that his evidence would not be inadmissible. The court said that there is no provision in the Act saying that if the cross-examination could not be held in part or in full, his testimony would be rendered absolutely inadmissible.

How much weight is to be attached to such testimony should be decided by considering surrounding facts and circumstances.

The court found a line of authorities in favour of its opinion. There is the decision of the Madras High Court in Maharaja of Kolhapur v. S Sundaram Ayyar, [AIR 1925 Mad 497] where the court held that where a witness was examined-in-chief and there was hardly any cross-examination and before it could be concluded, the witness died and the unfinished testimony of the deceased witness was not rejected or held to be inadmissible.

Another decision was that of the Allahabad High Court in Ahmad Ali v. Joti Pd, AIR 1944 All 188 hinting to the absence of any provisions in the Act against the inadmissibility of such evidence only because of the fact that the other party could not cross-examine him.

The court pointed out that the distinction between the admissibility of evidence and the fact that the court would not put any belief upon it is very fine but it is important because if the evidence is inadmissible, the court cannot take it on record, but, if it is admissible, it has to be taken and considered with the rest of the evidence.

Therefore, in regards to section 33 of the evidence act, the evidence of a person who has died after examination in chief and as by reason of his death, he could not be produced for cross-examination, although his evidence is admissible in evidence, the weight or probative value thereto would vary from case to case.

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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