Srikumar Mukherjee vs Avijit Mukherjee and Others

Harish Tandon, J—The point involved in this revisional application assumes importance because of the divergent opinions expressed by the several High Courts.

The point fell for consideration before this Court is whether the evidence of the witness shall be expunged when the said witness becomes unavailable to appear before the Court for further cross-examination.

In the instant case, the first witness of the plaintiffs, who filed affidavit as to examination-in-chief, was partly cross-examined by the defendant/petitioner. It is not in dispute that the said witness subsequently died and, therefore, becomes unavailable for further cross-examination. The defendant/petitioner took out an application for expunction of the evidence adduced by the said witness, as he cannot be cross-examined fully. The Trial Court rejected the said application saying that the said deposition cannot be expunged from the record, which is assailed before this Court.

Both the learned advocates were invited to address this Court on the above legal proposition of law and according to Mr. Shyamal Kumar Pandey, learned advocate appearing on behalf of the petitioner, if a witness becomes unavailable for the purpose of cross-examination, such evidence is non est and, therefore, is required to be expunged from the record and placed reliance upon a judgment of the Hon''ble Supreme court in case of Gopal Saran Vs. Satyanarayana, AIR 1989 SC 1141 : (1989) JT 21 Supp : (1989) 1 SCALE 497 : (1989) 3 SCC 56 : (1989) 1 SCR 767 : (1989) 2 UJ 1 . He further submits that Section 33 of the Evidence Act, 1872, creates an embargo on the Court to consider the evidence given by the witness in a judicial proceeding if the said witness is unavailable or become incapacitated to give evidence either in a subsequent judicial proceeding or in a later stage of the same judicial proceeding if the Court shall consider the same as unreasonable. According to him, if the witness was avoiding the cross-examination and subsequently becomes unavailable because of the death, his deposition or the evidence is inadmissible as held by the Division Bench of Andhra Pradesh High Court in Somagutta Sivasankara Reddy v. Palapandla Chinna Gangappa, decided on 23rd November, 2001. By placing reliance upon another Division Bench judgment of the Andhra Pradesh High Court in Andhra Pradesh Tobacco Growers Co-operative Ltd., Ongole Vs. Anjaneya Tobacco Co. and others, (1998) 5 ALD 188 : (1998) 5 ALT 331 : (1998) 2 APLJ 471 , Mr. Pandey would submit that if an opportunity to cross-examine is not provided, the cross-examination cannot be used as evidence and, therefore, should be expunged.

Mr. Probal Kumar Mukherjee, learned senior advocate appearing on behalf of the opposite parties, submits that the law does not pre-suppose the expunction of the evidence adduced by the witness, who, subsequently, could not make himself available for cross-examination to be taken out from the record. He further submits that the evidence would remain in the record as other piece of evidence, but its evidentiary and probative value shall be taken into consideration by the Court at the time of final disposal of the suit and placed reliance upon a Division Bench judgment of this Court in case of Ashis Sen and Others Vs. Arun Kumar Bose and Others, (2007) 1 CHN 305 . He, thus, submits that the evidence would remain on record and cannot be expunged therefrom and, therefore, the Trial Court has not committed any error in rejecting the application filed by the defendant/petitioner.

All the judgments cited by the respective counsels appear to be uniform on the proposition of law that the evidence of the witness cannot be taken off the record or expunged therefrom if he did not offer himself for cross-examination or becomes unavailable because of the death or other circumstances, but the probative and evidentiary value of the said evidence shall be considered by the Trial Court in the facts and circumstances of each case.

The Apex Court in case of Gopal Saran (Supra) was considering the case of eviction of a tenant, who suffered a decree on the ground of illegal sub-tenancy. The facts, which emanate therefrom is that the appellant was inducted as a tenant in respect of a shop room in Udaipur, but allowed an advertisement board to be affixed on the roof of the suit premises and was accepting the rent from one paramount services for advertisement. The suit came to be filed for eviction on the ground of subletting, material alteration of the suit premises by affixing the advertisement board on the roof of the shop room and default in payment of rent. The suit was ultimately decreed on the ground of subletting as the Court found that there was no willful and deliberate default in payment of rent and affixation of the advertisement board does not materially alter the suit premises. It appears that the examination-in-chief of the witness of the plaintiff was recorded but thereafter no cross-examination was conducted. The Trial Court after affording an opportunity to the defendant/appellant therein to cross-examine the said witness ultimately closed the same and such endorsement was made on the record after the matter was remanded for fresh consideration. Since the plaintiff did not offer himself for cross-examination, the defendant/appellant deposed in support of the defence and was also cross-examined by the plaintiff. In the backdrop of the above, the Apex Court was considering whether any case of illegal subletting has been made out by the plaintiff in his evidence. It is held that it would not be safe to rely on the evidence of the plaintiff when he never subjected himself for cross-examination in these words:

"It may be mentioned that the plaintiff had not subjected himself to cross-examination in spite of the order of the Court after the remand, therefore, it would not be safe to reply on the examination-in-chief recorded which was not subjected to cross-examination before the remand was made. If that is so, it will appear that there is no evidence of the plaintiff in respect of allegations in the plaint. This position appears established from the facts on record."

The Division Bench of Andhra Pradesh High Court in case of Andhra Pradesh Tobacco Growers (supra) have not held that the evidence of the witness, who did not afford an opportunity to the other side to cross-examine shall be expunged from the record, but it has been categorically held that such evidence shall not be treated as a good piece of evidence in these words:

"Therefore, the evidence of DW1 in chief-examination without affording an opportunity to the plaintiff to cross-examine him cannot be used as evidence in this case. We are therefore left with the evidence of PW1 and Exs. A1 A18."

In case of Somagutta Sivasankara Reddy (supra), the another Division Bench of the Andhra Pradesh High Court, was confronted with the identical point as to whether the witness, whose examination-in-chief has been recorded and was not subject to cross-examination would render the evidence inadmissible. After taking note of Section 33 of the Evidence Act and other judgments rendered by the different High Courts, it is held:

"17. Section 33 of the Evidence Act, in our opinion, is clear and unambiguous. If a witness is not deliberately produced and/or if the conditions precedent for admissibility of the evidence of a witness as specified in Section 33 are not fulfilled, such evidence, evidently, would not be admissible in evidence. It further appears that in the said case, well known principles of law laid down in several decisions of various High Courts, as noticed hereinbefore, had not been brought to its notice.

A similar view has been taken by learned single Judge of the Kerala High Court in Food Inspector Vs. James N.T. and Another, (1998) CriLJ 3494 : (1998) 2 ILR (Ker) 190 .

We, therefore, are of the opinion that 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 and in a given case may also be disregarded."

This Court is not ready to accept the proposition sought to be assigned by the learned advocate for the petitioner that admissibility of the evidence or its probative value leads to the situation that the said evidence should be expunged. The expunging of the evidence has a resultant effect of taking off the same from the record. Such evidence shall not be treated to be on record and, therefore, the question on its evidentiary or probative value does not arise. The admissibility of the evidence and its binding effect is different than the said evidence is to be expunged from the record. None of the judgments cited by either parties really suggest that the evidence of the witness, who either did not offer himself for cross-examination or becomes unavailable either because of the death or otherwise shall not occupy the space in the record and, therefore, is required to be expunged.

The ratio laid down in all the above noted judgments are uniform that the evidence of such witness shall remain on the record and the Court shall consider its probative or evidentiary value or relevancy along with other evidence so available, which obviously depends upon case to case.

It is, therefore, settled law that the evidence of a witness, who could not be cross-examined, cannot be expunged, but the Court shall consider its evidentiary or probative value along with other evidence.

The Division Bench of this Court in case of Ashis Bose & Ors. (supra) held:

"In support of his contention relating to value of evidence who was not cross-examined Mr. Banerjee, the learned Advocate for the appellants cited two decisions. In Chhatu Kurmi Vs. Rajaram Tewari, 3 Ind. Cas. 374 , it was held by a Full Bench of this Court that it is the right of every litigant in a suit, unless he waives it, to have an opportunity of cross-examining witnesses whose testimony is to be used against him. In Mt. Horil Kuer and Another Vs. Rajab Ali and Others, AIR 1936 Patna 34 , it was held that, the deposition of a witness who has been examined-in-chief but has not been cross-examined on account of certain circumstances which made the cross-examination impossible, need not be ignored and can be treated as evidence on the record. The weigh to be attached to such evidence depends on the circumstances and the Court should look at the evidence carefully to see whether there are indications that by a completed cross-examination the testimony of the witness was likely to be seriously shaken or his good faith to be successfully impeached. These two decisions in our opinion do not help the appellants. It is clear from the Lower Court Record that in spite of having opportunity, the then defendants waived their right of cross-examination of P.W. 7 to P.W. 9 and accordingly evidence of those witnesses cannot be totally discarded and Court has to consider such evidence along with other evidence and materials on record to come to a conclusive decision.

In view of the discussions above, this Court does not find any infirmity and/or illegality in the impugned order.

Before concluding, this Court must part with certain observations that the Trial Court, before whom the entire matter is at large, is free to consider the probative value of the evidence adduced by the said witness along with the other evidence, both oral or documentary, available on record or to be adduced by the respective parties and other factors indicated herein above at the time of final disposal of the suit.

With these observations, the revisional application is disposed of.

There shall, however, be no order as to costs.