Skip to content

Ganga Devi G. @ Ganga v. Dr. Lathakumari K.

Evidence Act, 1872 – The permission or consent granted to mark the document shall not be misconstrued as an admission to the content of the document. [Para 6]

Evidence Act, 1872A proof affidavit, additional proof affidavit or documents tendered, if not allowed to be tested by cross-examination, will not form part of the evidence. [Para 6]

Evidence Act, 1872Mere marking of documents would not itself amount to acceptance in evidence, except when marked with a prefix or suffix “not objected” and it should find a place in the proceedings, wherein the document was marked, otherwise, the marking of document should be only for the purpose of its identity. [Para 6]

Evidence Act, 1872 – When the witness died after chief examination and before cross-examination, the court cannot eschew the entire oral testimony, but should seek corroboration by other pieces of evidence and in the absence of such corroboration, the court will be justified in rejecting the entire version given in chief examination. The court must be so cautious while rejecting the entire version given in chief examination, when the witness died before cross-examination. A different criteria can be applied when cross-examination was started, but not completed. The portion of evidence which was subjected to cross-examination will form part of evidence, while the rest of the portion needs corroboration. [Para 5]

Evidence Act, 1872 – Ss. 137, 138 & 139 – The right of cross-examination of a witness on any crucial aspect and on the documents relied on is an indefeasible right. The only exception to this general rule is under Section 139 of the Evidence Act, when a person is summoned for mere production of a document and not as a witness. There shall not be any misunderstanding between denial of right of cross-examination, failure to conduct cross-examination and waiver of such right of cross-examination. Among these three, the first one alone would make the chief examination inadmissible in evidence. There may be cases in which there is failure on the part of opposite party or opponent to cross examine the witness or waiver of the right of cross examination. In both these cases, the oral testimony by way of chief examination would acquire the character of evidence. [Para 1]

The decree and judgment of the court below hence cannot be sustained and liable to be set aside. The case is remanded back to the trial court so as to afford an opportunity to cross examine the plaintiff on the additional proof affidavit and documents Exts.A3 to A5.

Case Law Reference

  1. Nilavarnisa v. M.M. Faizal, 2019 (1) KHC 699 : 2019 (1) KLT 652
  2. Narbada Devi Gupta v. Birendra Kumar Jaiswal, AIR 2004 SC 175
  3. Satnam Singh v. Sadhu Singh, 2001 (8) Supreme 574
  4. State of Karnataka v. State of A.P., (2000) 10 SCC 607
  5. State of U.P. v. Nahar Singh, (1998) 3 SCC 561
  6. Dahyabhai Chhaganbhai Thakker v. State of Gujarat, AIR 1964 SC 1563

Citations : (2021) 10 KCC 381 : 2021 (6) KHC 151