( 1 ) CROSS-EXAMINATION is a powerful weapon in the hands of adversary. Non-grant of an opportunity to cross-examine a witness may even attract the doctrine of fairness and may be held to be violative of principles of natural justice. (See: Full Bench decision of this Court in K. Raghuram Babu v. DG of Railway Protection Force, New Delhi, 2001 (6) ALD 18 ).

( 2 ) WHETHER the said principle has any exception is the question involved in this reference made to this Bench by a learned single Judge of this Court.

( 3 ) THE civil revision petition is directed against the order passed by the Principal Junior Civil Judge, Kadiri in OS No. 132 of 1999 whereby the evidence of PW1, who was examined in chief but was not cross-examined owing to his death, had been ordered to be eschewed from record relying on a decision of Division Bench of this Court in A. P. Tobacco Growers Co-op. Union Ltd. v, Sri Anjaneya Tobacco Co. , 1998 (5) ALD 188 = 1998 (5) ALT 331.

( 4 ) THE learned single Judge did not counter with the view expressed in A. P. Tobacco Growers Co-op. Union Ltd (supra), but agreed with the view expressed in Maharaja of Kolhapur v. Sundaram Ayyar, AIR 1925 Mad. 497 and Ahmad Ali v. Joti Prasad, AIR (31) 1944 All. 188, by the Madras and Allahabad High Courts respectively. The learned single Judge found that the question would frequently arise before the trial Courts and therefore the matter is now before us.

( 5 ) THE following points framed by the learned single Judge were referred for an authoritative pronouncement: (a) Whether the provisions in Section 33 of the Evidence Act would apply to the question of admissibility of evidence of a witness who has been examined in chief for being used as evidence in the same proceedings? (b) Whether the fact that the witness whose examination in chief has been recorded was not subjected to cross-examination would render the evidence inadmissible? or whether the fact of the witness having not been cross-examined would merely affect the evidentiary value of the witness?

( 6 ) THE witness has died after examination in chief. He, therefore, could not be produced for cross-examination. What would be the effect of non-production of 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 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.

( 7 ) SECTION 33 of the Evidence Act, 1872 reads thus: relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein statedevidence given by a witness in a judicial proceeding or before any person authorised 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 that the proceeding was between the same parties or their representatives in interest: that the 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 proceeding. Explanationa criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

( 8 ) THUS, the evidence given by a witness, although he had not been cross-examined may be admissible in evidence. However, weight or probative value attached to such evidence would