Witness Whether Must be Cross-examined

Under the Act, cross-examination of a witness is not essential. The coun is not precluded from assessing the veracity of a witness in the absence of any cross examination. The challenge of oral evidence must be elected in the course of cross-examination.

Where the evidence of a witness is allowed to go unchallenged with regard to any particular point, it may safely be accepted as true. The evidence of a witness recorded during inquiry or trial affecting a party is inadmissible, unless that party gets an opportunity to cross-examine him.

The entire thrust of the cross-examination was that minute details were not noted in the FIR or under s 161, Cr PC 1973, for instance, in para 5 of the cross-examination, it has been said that the complainant did not mention that the accused were on friendly terms. The complainant admitted that the accused belonged to different castes. In para 10, it was asked that he did not mention that the accused Chhuttan had caused four or five injuries to him. He has mentioned only this much that he had caused knife injuries. In para 18, it has been asked that the name of Khilendra Singh, P.W. 3 was not mentioned in the FIR.

These minutes details could not have been narrated by the complainant when he was in the state of shock, agony and terror. He had received serious injuries. His mental balance could not have been expected to be of such a high state that he could write a thesis in the shape of FIR. It has been repeatedly held by the courts that the FIR is not supposed to be an encyclopaedia containing all minutest details which the learned cross- examiner after several years of practice puts to the complainant in the witness box.

The complainant is an illiterate person. Whereas, the cross- examiner is a learned counsel having several years of experience to his credit. The complainant is not expected to know criminal law. Whereas, the cross-examiner is well-versed in this branch of criminal law. Hence, there cannot be any comparison between the intelligence of a cross- examiner and that of an ordinary villager like the complainant. Therefore, this sort of cross-examination leads us nowhere.

Not only this, such more omission had a flavour of truth and naturalness in the testimonies of witnesses. They show that the witnesses has not been tutored and his version is not of a parrot. That shows that the testimony of such a witness should be relied upon by the courts.

The deceased was assaulted at the bus stop. The evidence of eye witnesses, which included his wife and brother, was found to be reliable. Mere fact that FIR was lodged by the brother of the deceased on the next morning, would be hardly sufficient to reject his evidence.

In this regard, reference may be made to S 299 , which permit s recording of evidence in the absence of an accused. It provides that if it is proved that an accused person absconded, and that there is no immediate prospect of arresting him, the court competent for trial, such person for the offence complained of may, in his absence, examine the witnesses produced on behalf of the prosecution, and record their depositions.

Any such deposition may, on his arrest or trial, for the offence with which he is charged, if the deponent is found dead, or incapable of giving evidence, or can't be found, or his presence can't be procured without any amount of delay, expense, or inconvenience, which, under the circumstances of the case, would be unreasonable. Thus, in view of this provision, evidence of a witness, who would not be cross- examined, can be taken in to consideration by the court in the circumstances mentioned in the aforesaid provision s.

The evidence of a witness who could not be subjected to cross examination due to his death before he could be cross examined, is admissible, in evidence, though the evidentiary value will depends upon the fact s and circumstances of the case.

End Notes:

1. Food Inspector, Thodupuzba, Circle v James NT, & Anor, 1998, Cr LJ 3494 , Kerala High Court.
2. 83 Vijender v State of Delhi 1997 SCC