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Sivhamurthy Swamy Vs. Agodi Songanno - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberE.P. No. 3 of 1967
Judge
Reported inAIR1969Kant12; AIR1969Mys12; 1969CriLJ118
ActsEvidence Act - Sections 142, 154, 165 and 194
AppellantSivhamurthy Swamy
RespondentAgodi Songanno
Excerpt:
.....sought permission under section 194 to put to witness-a, questions which may be put to him in cross-examination by adverse party - it has not yet been made out that witness has disclosed such animus as to require to permit petitioner himself to cross-examine him - at this stage petitioner had not laid foundation necessary for seeking permission to cross-examine under section 154 - no case made for general permission to cross-examine witness-a being granted under section 154 - court declined to grant permission under section 154 to petitioner to put witness-a any questions which can be put in cross-examination by adverse party. - income tax act,1961[c.a.no.43/1961] -- sections 21 (1) & 31(1): [k.l. manjunath & a.s. bopanna, jj] change of sound system in a theater whether to be..........under section 194 of the evidence act to put to this witness questions which may be put to him in cross-examination by the adverse party. this request was opposed (page 246) by mr. venugopalachari, learned counsel for the respondents on the ground that in the circumstances of this case, no such permission could properly be granted at all or that at this stage of the examination of the witness, the petitioner may not be said to have laid the foundation necessary for seeking permission to cross-examine under section 154 of the evidence act.2. as both the counsel sought some time for addressing full arguments on this question with the assistance of citations, the examination of this witness was postponed and the next witness p.w. 19, put into the box. after completing the examination of.....
Judgment:
ORDER

1. Further examination of this witness was stopped after recording the last answer just before the Court rose for lunch. When the Court reassembled after lunch, Mr. B. S. Patil, learned counsel for the petitioner, sought my permission under Section 194 of the Evidence Act to put to this witness questions which may be put to him in cross-examination by the adverse party. This request was opposed (page 246) by Mr. Venugopalachari, learned counsel for the respondents on the ground that in the circumstances of this case, no such permission could properly be granted at all or that at this stage of the examination of the witness, the petitioner may not be said to have laid the foundation necessary for seeking permission to cross-examine under section 154 of the Evidence Act.

2. As both the counsel sought some time for addressing full arguments on this question with the assistance of citations, the examination of this witness was postponed and the next witness P.W. 19, put into the box. After completing the examination of P.W. 19 yesterday, arguments were commenced. They concluded today.

3. Although many cases have been cited by Counsel on both sides, there is not much doubt or obscurity about the principles governing the Court's discretion whether or not to grant the permission under Section 154 of the Evidence Act. Most of the cases have been cited only by way of illustration of the particular and respective positions taken up by the counsel or merely as examples of the application of the well established principles to the facts and circumstances of particular cases. It will not therefore, be necessary for me to refer in detail to everyone of the cases cited.

4. Whatever may be the position under the English law, it has never been doubted that, under the Indian law and particularly in view of the wording of Section 154 the Evidence Act, the matter is left entirely to the discretion of the Court. It is not necessary as pointed out by the Privy Council so early as AIR 1922 PC 409, Baikuntha v. Prasanna, to make any formal declaration that a witness is hostile before granting permission under section 154 of the Evidence Act. But though the discretion is stated in wide terms, there is no doubt that it is a judicial discretion and is required to be exercised in a judicious way.

5. The general or basic principles governing the exercise of such discretion have been the subject of consideration by a Division bench of this Court, in a case, the judgment of which is reported in the State v. Subbappa, 1960. Mys LJ 887 at pp. 895 and 896 of the report = ((1961) (2) Cri LJ 653 at p. 656); it is pointed out therein:

'Having regard to the ultimate objective of taking evidence, namely, to discover the truth to the best of one's ability, it is obvious that the principle alone should be the one to guide and direct the exercise of the Court's discretion and not any considerations bearing upon whether the granting or refusing to grant permission to cross-examine a witness in a particular instance will be favourable or unfavourable to the case of the one or the other party before Court.'

6. It was also pointed out on an examination of the relevant sections of the Evidence Act, that in ordinary circumstances or in a majority of cases it may be taken that when a party calls a witness, he represents to the Court that the witness called by him is worthy of credit and is likely to speak the truth in respect of facts touching matters under enquiry by Court. Such general proposition was also qualified by the statement that occasions may, not infrequently arise, there a party may be obliged to examine a witness, with whom he may have no privity and of whose general character and credibility he may not be fully aware or informed and that in such cases, it will not only be absurd to assume that he represents to the Court the witness is worthy of credit but also, in the highest degree, unfair and unjust.

7. These propositions briefly stated in the said decision should now be explained in some detail before applying them to the facts of this case.

8. Now, when a party comes to Court with a pleading in support of the case propounded by him, the law assumes that he is putting forward that case with the belief that it is true on facts and sustainable in law. When a party calls a witness, he does so to prove his case; and may therefore reasonably expect the witness to depose to facts which go to support his case.

9. Witnesses depose on oath to speak the truth and may, therefore, be expected to speak the truth. The total effect of these considerations is that when a party cites witness, he is representing to the Court that the said witness is, in his opinion, a trustworthy witness who may be expected to speak the truth, and because he has put forward a case which he believes to be true, by expecting the witness to speak the truth, he may be taken to expect that he will speak in favour of his case.

10. Exceptional cases will fall into two categories. The first is where a person is bound by law to examine a witness of a particular description to prove his case, as for example, examination of an attestor of a will or an attestor of documents required by law to be attested. The second category of cases would be cases where a party is obliged not by any rule of law but by force of circumstances or pure necessity to examine a witness in order to complete the statement of his case or completely to discharge the burden of proof placed on him by law.

11. But whatever may be the category into which a given case falls, and whatever may be the circumstances which oblige a party to call particular witness, there is no doubt that so far as his case itself is concerned, he does not represent to the Court that the said case is true on facts or at any rate, he believes that the facts stated in his pleadings in support of his case are true.

12. There is also no doubt that the only purpose of a party leading evidence is to lend support to his case. It will, therefore, not be wrong or unfair to proceed on the footing that in citing a witness and examining him on his side, he expects or at any rate entertains the hope that the evidence of the said witness will lend some support to his case.

13. The purpose of the court in conducting the trial is, as already stated, to make the best attempt that is humanly possible to discover the truth. The task of the Court in recording the examining or assessing evidence is to discover the truth as far as it is humanly possible to do so. It is with this in view that the Court should exercise its discretion under section 154 of the Evidence Act.

14. Although as stated by the Privy Council and as always held to be correct law in India, it is not necessary to make a formal declaration that witness is hostile to the party calling him before permitting a party to cross-examine him because the purpose of cross-examinations is to test the truth of the evidence given by a witness, the Court would be right in permitting the cross-examination by the very party who called that witness only if it has reason to believe that the witness may be in some manner or the other unwilling to speak the truth or not disposed to speak the truth and that therefore it is necessary to submit his evidence to the test of cross-examination by the very party calling him. Now, it should be remembered that in the case of every witness, there is a right of cross-examination given by the Evidence Act to the adverse party. An adverse party in normal circumstances is the party opposed to the party calling the witness. An answer given by a witness adverse to the party calling him would in normal circumstances be an answer in favour of the case of the opposite party. Hence the opposite party may not be interested in cross-examining him in respect of the answer. It is in such circumstances that the Court will find itself without assistance of the test of cross-examination if the party calling him is not himself permitted to cross-examine his witness.

15. The essence of the matter, therefore, is not whether the answer given to a question is adverse to the case of one or the other of the parties but whether an answer given or a disposition disclosed in a matter likely to damage the case of the party calling the witness, may be suspected to be inspired by a desire not to speak the truth or to hide the truth or to colour the truth in such a way as to mislead the Court.

16. In normal cases where it can be fairly assumed that a party calling a witness represents to the Court that he is a trustworthy witness, an occasion for the party calling him to seek permission under Section 154 of the Evidence Act can arise only where he unexpectedly gives an answer which is adverse to his case. Even there, it is not enough if the party feels that the witness is hostile to him; it is necessary that the Court should come to entertain an opinion that the witness has such hostile animus against the party calling him as to be inspired by a desire to speak the untruth or not to speak the truth.

17. Hence, in such cases, an element of surprise of the type mentioned above becomes the starting point for a consideration by the Court of the question whether it should exercise its discretion under Section 154 and permit the party calling a witness to cross-examine him.

18. It is with reference to such cases that Rowland J., observed in Sachidanand Prasad v. Emperor, AIR 1933 Pat 488 at p. 492, that permission under Section 154 could hardly be refused when any witnesses makes an unexpected statement adverse to the case of the prosecution. As I read the observation, it means that an attempt on the part of the witness to depart from what is tentatively believed to be true is open to the suspicion that he may be departing from the truth, making it necessary to test his veracity by cross-examination by the party to whose detriment his unexpected departure may operate.

19. With reference to cases of witnesses like an attesting witness whom the law obliges a party to examine, Mukherjee, J., has in I. L. R. 47 Cal 1043 : (AIR 1921 Cal 677) pointed out that it is wrong law to assume that such witnesses must be regarded as witnesses called by the Court and liable to be cross-examined as of right by the party citing them. His Lordship states that a witness should be regarded as adverse and liable to cross-examination by the party calling him only when, in the opinion of the Court, he bears hostile animus to the party calling him and further that that a hostile witness in the real sense is one who from the manner in which he gives him evidence shows that he is not desirous of telling the truth.

20. Now, the present case does not fall under either of these categories. According to Mr. Patil he has been obliged by circumstances and by way of pure necessity to call this witness, because having regard to the acts and activities attributed to this witness which amount to corrupt practice under the Representation of the People Act, he was one who, in all probability, was not likely to be examined by the respondents at all but whose evidence is necessary to be placed on record to assist the petitioner to discharge the burden of proof resting on him. Indeed, this witness has been described by Mr. Patil as in truth and in substance a witness for the respondents, that is to say, a person who by his acts has shown himself to be so deeply interested in the respondents as to be regarded as a witness favourable to the respondents and unfavourable to the petitioner. He further adds that the petitioner considers it his duty to cite and examine this witness with a view to assist the court to arrive at the truth.

21. Now, these statements or contentions put forward by Mr. Patil for the petitioner lead to one inevitable inference, viz., that even at the time this witness was cited by the petitioner, he had no illusions about the type of evidence he might give, but did distinctly and clearly contemplate that it would be necessary for him to cross-examine this witness for the purpose of making out his own case.

22. If such is the position, he cannot be said to represent to the Court that this witness may be regarded as a trustworthy witness. If, therefore, he gives an answer adverse to the case of the petitioner he cannot be heard to say that he has been taken by surprise and that therefore he may be permitted to test the truth of the answer by himself cross-examining the witness. Mr. Patil nevertheless argues that his case must be regarded as on par with the case of an attesting witness which a party propounding a will or an attested document is bound by law to examine.

23. I do not think that the analogy applies in all respects. The necessity in this case of examining the witness is not one imposed by law but one regarded as existing by the petitioner and one which to a great extent depends upon a n opinion of the petitioner. If this view is that this witness is strongly disposed in favour of the respondents and against the petitioner and he nevertheless entertains the opinion that it is necessary for him to examine this witness to make out this case and at the same time actually expects that it will be necessary for him to cross-examine him to make out his case, then, it clearly means that he is taking a chance of the witness making some answers which may support his case, but at the same time expects to be enabled by the Court to impeach his credit by cross-examination should he give answers adverse to his case.

24. Such a situation in my opinion, is not one which may, in any sense, be said to entitle the petitioner to seek permission of the Court under Section 154 of the Evidence Act to cross-examine the witness. If he took the chance of this witness making some answer in favour of his case, he must also take the risk of the witness damaging his case by his other answers. To hold otherwise would be to bring about a situation which is clearly unfair to the respondents.

25. What is stated above e is a line of inference which flow from the original opinion entertained by the petitioner when he cited this witness, and the consequences which flow from his conduct are consequences which, both according to law as well as ordinary human calculations, a man taking a chance must in all fairness take.

26. From the point view of the Court, the one and only consideration is whether the attitude disclosed by the witness is one destructive of his duty to speak the truth. An animus adverse to the party calling him necessary for the grant of permission under Section 154 is such animus as is sufficient to create in the mind of the Court a tentative opinion or at least a suspicion that the witness is not disposed to speak the truth or is disposed to speak the untruth, making it necessary to permit the party calling him to cross-examine him may not cross-examine him in view of the fact that the answer is favourable to his case.

27. From this point of view, the mere fact that the answer is adverse to the case of the party calling him is not sufficient, and in peculiar circumstances of this case, such an answer by itself can hardly be regarded as untrue or as disclosing a desire on the part of the witness to speak the truth, because the petitioner did not expect and cannot reasonably be said to have expected that the witness would support his case and he cannot therefore tell the Court that because he does not support his case, the witness is speaking the untruth. It may be that the witness knows that everything stated about him in the petition is not t rue or not knowing what has been stated about him in the petition is admitting only such facts of his as are true and denying as untrue any other acts or activities which he did not indulge in. Even if he should be regarded, as the petitioner contends, as a person favourably disposed towards the respondents, it need not be that he has any special animus against the petitioner so as to be willing to speak the untruth.

28. No doubt the other witnesses examined for the petitioner have spoken to some of the acts and activities of this witness as alleged in the petition. But the fact that this witness or any answer given by this witness contradicts the evidence of those witnesses is not by itself sufficient to hold that he has such hostile animus as to entitle the petitioner to seek my permission under Section 154. This position has been fairly conceded by Mr. Patil. That is also what the Madras High Court held in Rathnasabhapathy v. Public Prosecutor, AIR 1936 Mad 516. See page 520 of the Report.

29. But the burden of Mr. Patil's argument is that because the respondents taking refuge under the rule as to burden of proof would not examine this witness on their side, he is not only obliged to examine him on his side nut also feels it to be his duty to assist the Court in discovering the truth by placing on record the evidence of this witness and further by cross-examining him for testing the truth of his evidence.

30. So far as the petitioners opinion that it is necessary to examine this witness to complete his case is concerned, what I have stated above is a sufficient answer. If he did not expect this witness to support his case but merely took the chance of his giving some answers which may be in favour of his case, he cannot be heard to say that he should be relieved of the adverse consequences that may flow from his action.

31. So far as his duty to assist the Court is concerned, I am clearly of the opinion that his duty is to cite and examine witness whom he believes to be trustworthy. If he does not believe this witness to be trustworthy witness and his object is only to hold up this witness as a liar, or to expose him in his true colours as Mr. Patil stated in the course of his arguments then, clearly his purpose is not bona fide desire to prove his case but to malign this witness as an individual. It should be clearly borne in mind that what the Court is interested in is to discover the truth or otherwise of the respective cases of the parties placed before it for adjudication. It is not directly interested in ascertaining the trustworthiness or good character of all and sundry persons. The veracity or credibility or trustworthiness of a witness is of importance only as a step in aid to its main task of adjudicating upon the truth or otherwise of the case before it. I do not think that a Court can be called upon to divert its attention from its main task and concern itself with the character or conduct of a person who is not a party to the preceding before it.

32. It may be that the witness may admit some facts and deny some facts. Whether those admission or denials are secured either in the course of the cross-examination on behalf of the Respondent, the Court is not relieved of the duty of assessing their truth in the light of the entire evidence placed before it. If both the parties fail to elicit from the witness information which is relevant to this enquiry, the Court is not powerless; it can nevertheless intervene under Section 165 of the Evidence Act if it entertains the opinion that it is necessary to do so in the interests of discovering the truth. In such an event, it would also give liberty to both the parties to cross-examine the witness upon topics covered by examination by the Court.

33. In the circumstances of this case and for the reasons stated above, I am not satisfied that it has yet been made out that the witness has disclosed such animus as to require me to permit the petitioner himself to cross-examine him.

34. Although the petitioner has taken the risk of examining this witness on his side and should therefore be fairly called upon to take the consequences of the steps taken by him, the evidence of this witness is of considerable importance to the decision of some of the important issues of this case. Hence, although in my opinion, no case has been made for a general permission to cross-examine this witness being granted under S. 154 of the Evidence Act, it may become necessary on particular topics or in relation to material circumstances to relieve the petitioner against the prohibition of putting leading questions to the witness, so that I may have a clear picture of the witness's reaction to those questions as an aid to discovering the truth in this case.

35. For the said purpose, it appears to me that it is open to me to act either under Section 154 to a limited extent or under Section 142 which allows leading questions to be put in examination in chief, even if objected to, with the permission of the Court.

36. Mr. Patil cited the decision of the Calcutta High Court in AIR 1930 Cal 139 to suggest that it may not be possible to grant such permission to put leading questions without giving a general permission to cross-examine under S. 154. Some support for that view is available in the observation of Lort-William J., in the said decision. That view is not accepted by a full bench decision of the Calcutta High Court reported in Profulla Kumar v. Emperor : AIR1931Cal401 , where it is clearly observed that there has never been any doubt as to the power of the Court to give leave to put leading questions to one's own witness as is plain from Section 142 of the Evidence Act. I respectfully agree with the view stated by the full bench of the Calcutta High Court. It will be noticed that the objection to putting leading questions in the course of the examination in chief is that it may bring about a situation which is unfair either to a witness or to the other side. In the case of witnesses who are quite impartial and depose truthfully to facts which they know to be true, a leading question may divert them into giving an answer which may not be true according to their conception of facts. In the case of witnesses clearly disposed in favour of the party calling them, they may very readily assent to whatever the examining counsel leads them to state. In the former case, the result would be unfair to the witness and in the latter unfair to the other side. But in the case of a witness like this who, even according to the petitioner, is not disposed favourably towards him, there is no question of his being led into an answer against his will. He may in normal circumstances be expected to state facts as he sees them, and should he state anything which discloses an undue favour towards the respondents, the manner and content of his answer will be of assistance to me in assessing the value of the same.

37. I, therefore, decline to grant the general permission under Section 154 of the Evidence Act to the petitioner to put this witness any question which can be put in cross-examination by adverse party. In the case of particular matters or particular topics which appear to me of material importance, I may grant permission to the petitioner's counsel to put leading questions, each matter being considered on its own merits.

38. The examination of the witness will continue in the light of this ruling.

39. As it is now past 5 P.M further examination is adjourned to 11 A.M on Monday the 18th of this month. The witness will be present in Court at that time.

40. Order accordingly.


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