LAW OF EVIDENCE 645
- What is the effect of a default in the course of the examination of a Witness prescribed by law ?
(1) This question can arise only when there is a default in Cross-examination or Re-examination. Until there is Examinationin-Chief, there is no evidence at all in the legal sense of that term.
It is only when evidence has been given by the witness in his Examination-in-Chief that this question can arise. The question to be considered reduces itself to the effect of default of Crossexamination or Re-examination on the testimony of a witness.
(2) Such default takes place when the witness dies or falls ill, becomes insane or paralytic or disappears after his Examinationin-Chief or before X Examination.
(3) The Evidence Act does not in clear terms state in express terms what the effect will be. Whether, for want of Cross-examination or Re-examination of a witness, his testimony given in Examinationin-Chief will cease to be evidence in the legal sense of the word and will have to be cancelled and excluded from the consideration of the Court or whether it will merely affect its evidentiary value, is not stated in the Evidence Act. The question is determined by Judicial interpretation.
According to judicial interpretation, two propositions are well established.
(1) Such default does not make the evidence inadmissible. It only affects its credibility.
(2) Whether it would be credible or incredible, must depend upon the reasons for the default in Cross-examination.
There are two ways in which default in X Examination may take place:
(i) Where a party could have X Examined but did not do so.
(ii) Where a party would have X Examined but could not do so.
The question of credibility could arise only in the second case. It could not arise in the first. The Law can give an opportunity and nothing more. If opportunity is not taken, the law holds there is no injury.
ยง Regular Course of Examination
The Course of examination of a witness must be regular.
A Course of Examination to be regular must be in accordance with the rules laid down in the Evidence Act ?