Very often an argument resonates in the legal arena about expunging the recorded evidence of a witness whose depositions (examination-in-chief) were recorded without cross-examination by the other party.
On the contrary, there is a counter argument that in any given litigation the witnesses are produced before the court to prove their case and they testify on oath as per rules of evidence, but if for some unspecified reasons they cannot be cross-examined by the other side, their testimony cannot be discarded or made inadmissible only because they were cross-examined.
It is further argued that in cases where the witnesses cannot be cross examined it is sufficient if initiatives are taken to produce the witnesses to that end. However, if the witnesses cannot be brought again in the court for some unavoidable reasons despite issuing of several court-processes to compel their attendance, the litigation can be disposed of upon the evidence already recorded. If the other side is benefited only for the reason of non-cross-examination of the witnesses, such a decision will seriously jeopardise and prejudice the party which produced the witnesses.
Now, to find a feasible answer we would like to venture into the legal aspect of the “expunge of evidence” issue. In the criminal justice system of the country where adjudication mechanisms are predominantly adversarial, the witnesses are usually very reluctant to come to the courts to depose owing to various socio-political embargoes.
Despite all such factors the litigants or the law-enforcing agencies, as the case may be, are producing the witnesses to depose at the courts with the initiatives of the courts and the prosecution in course of the trial. In a trial where any prosecution witness after being examined-in-chief and after his cross-examination is held either in part or not at all at the instance of the defence, the said witness did not turn up for his further cross-examination in spite of repeated opportunities given by the court, the trial court is not obliged to go on granting adjournments to the witness for an indefinite period. In such a case, it would be proper for the trial court to close the evidence of the said witness and to proceed to the next stage of trial.
Under the scheme of the Code of Criminal Procedure (CrPC) and according to the provision of the Evidence Act, there is no provision for expunging of evidence of any witness from the records, the question of expunging of evidence only arises when there is any order of a superior court for de-novo trial from the charge framing stage.
In other words, once evidence is recorded, the court which recorded such evidence has no legal opportunity to expunge the same from the records. In this connection it would be relevant to refer the observation of the Calcutta High Court in the case of Dever Park Builders Pvt Ltd and others v Smt Madhuri Jalan and others, reported in AIR 2002 Calcutta 281.
In this case, the court observed, “The issue was whether the testimony of the deceased defendant with unfinished cross-examination will be admissible or be considered at the time of hearing or rendering judgement in that case or not. Under the provisions of section 138 of the Evidence Act, order of examination of witness is provided. It appears that the witness shall be first examined-in-chief by the party who has called him and then if the adverse party so desires may cross-examine and thereafter if the party calling so desires may re-examine.”
It is apparent from the legal provision that the cross-examination is not a must and without which the evidence given in examination-in-chief cannot be rejected. However, if the adverse party opts for it, the cross- examination is a must. There is substance in the stance that there is no provision under law that if the witness is not cross-examined either in full or part, his evidence would be absolutely inadmissible.
A somewhat similar question came up for consideration before the High Court Division of Bangladesh Supreme Court in the case of Chowdhury Miah v Dhanindra Kumar Shil reported in 45 DLR 110. In the decision of the case, the High Court Division observed that there is no provision in the Evidence Act that the evidence of a witness which is admissible at the time he gave it should become inadmissible for the reason that he could not be cross-examined for some unavoidable reason.
For the reasons stated above, the argument for expunging the testimony recorded in chief examination is liable to be discarded. Therefore, under similar circumstances, the cases should be adjudged upon evidence on record and in pursuant to the merit of the case in accordance with principles of law and justice.