Point of law:Cross Examination - Evidence is admissible if cross-examination is not evaded or deliberately prevented. Death or illness before cross-examination makes the evidence-in-chief admissible though its weight may be slight. But absence from the country, or temporary illness, has been held insufficient, the proper course being to adjourn the trial or issue a commission; … Farwell. J., rejected in toto the evidence of a plaintiff who fainted and was unable to be cross-examined

ORDER :

The short grievance of the petitioner who happens to be the defendant No.2 in a suit for declaration in O.S.No.50/2010 is against the order dated 10.8.2016, a copy whereof is at Annexure-E, whereby the learned Civil Judge (Jr. Dvn), Honnalli, has restored deposition of PW3 (now deceased) to the record; the said deposition was eschewed from the record earlier on the ground that PW3 died without facing cross examination.

2. After service of notice, the contesting respondents having entered appearance through their counsel, resist the writ petition making submission in justification of the impugned order and the reasons on which it has been constructed.

3. Short question of law that falls for consideration of this court is as under:

Whether the deposition of a witness who died before being crossexamined constitutes a legal evidence?

4. Having heard the learned counsel for the parties and having perused the petition papers, this Court is of a considered opinion that above question need not detain the court any longer since legal literature concerning the same galores, as rightly pointed out by Sri. K.N.Puttegowda, learned counsel appearing for the respondents.

5. Learned author Rupert Cross in his “EVIDENCE”, 3rd Edn. London Butterworths 1967 at pages 211 & 212 states:

“The object of cross examination is two fold, first, to elicit information concerning facts in issue are relevant to the issue that is favourable to the party on whose behalf the cross examination is conducted, and secondly to cast doubt upon the accuracy of the evidence-in-chief given against such party … All witnesses are liable to be cross examined except one who is called by the Judge, one who is called for the sole purpose of producing a document and who is not examined-in-chief. A witness who does not come within these accepted categories is probably liable to be cross examined, not merely by the opponent of the party calling him, but also by all other parties. All parties probably have the right to cross examine the witnesses not called by them, whether or not the witness is himself a party, and whether or not the witness has given evidence against the party seeking to cross examine him”.

6. In Sarkar’s Law of Evidence, 18th Edn. Lexis Nexis, in Chapter X after surveying several English & Indian decisions succinctly states the position of law as under:

“When a witness dies after examination-in-chief and before cross-examination, the evidence is admissible, but its probative value may be very small and may even be disregarded….. If the examination is substantially complete and the witness is prevented by death, sickness and other causes (mentioned in sec.33) from finishing his testimony, it ought not to be rejected entirely. But if not so far advanced as to be substantially complete, it must be rejected. Deposition of a witness whose cross-examination became impossible can be treated as evidence and the court should carefully see whether there are indications that by a completed cross-examination the testimony was likely to be seriously shaken or his good faith to be successfully impeached …. Evidence is admissible if cross-examination is not evaded or deliberately prevented. Death or illness before cross-examination makes the evidence-in-chief admissible though its weight may be slight. But absence from the country, or temporary illness, has been held insufficient, the proper course being to adjourn the trial or issue a commission; … Farwell. J., rejected in toto the evidence of a plaintiff who fainted and was unable to be cross-examined …”

7. The Hon’ble Calcutta High Court in DEVER PARK BUILDERS PVT. LTD. & OTHERS vs SMT. MADHURI JALAN AND OTHER, AIR 2002 Cal. 281 which Mr.Puttegowda learned counsel for the respondents presses into service, has answered the above question of law in the affirmative, after referring to decisions of several High Courts in the country.

8. The learned counsel for the petitioner is more than justified in submitting that even if th