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Appreciation of evidence of witness whose Cross-examination could not be conducted due to death or illness

In the High Court of Delhi

Appellate Civil
(Before H.R. Khanna, J.)

Krishan Dayal


Chandu Ram

R.S.A. No. 28 of 1962
Decided on July 8, 1969
Citation: 1969 SCC OnLine Del 134 : ILR (1969) Del 1090

The Judgment of the Court was delivered by

H.R. Khanna, J.:— This regular second appeal filed by Krishan Dayal plaintiff is directed against the judgement and decree of learned District Judge, Mandi and Chamba, modifying on appeal the decision of the trial Court whereby the suit of the plaintiff against Chandu Ram defendant No. 1 (who died during the pendency of the proceedings and is now represented by his legal representatives and Munshi Ram defendant No. 2 had been dismissed. As a result of the appeal, the plaintiff has been held entitled to receive Rs. 6000/- out of Rs. 16,000/- deposited in Court.

The brief facts of the case are that on Phalgun 25, 1999 Bikrami Krishan Dayal Plaintiff, Chandu Ram defendant No. 1 and Munshi Ram defendant No. 2 entered into a partnership for extraction and sale of resin in Mandi State. A deed of partnership Exhibit PA was executed in that connection. According to the terms of the partnership deed the plaintiff was to invest the entire amount for the business of the partnership and was to get interest at the rate of Re. 1/- per cent per annum on the amount invested

The assets of the partnership were first to be applied towards payment of the amount invested by the plaintiff and the interest thereon. Out of the balance, the profits were to be distributed amongst the partners. The share of the plaintiff was fixed at 6 annas in a rupee, while the shares of Chandu Ram and Munshi Ram defendants were 8 annas and 2 annas in a rupee respectively the partnership firm thereafter carried on the business for some years. On Magh 4, 2004 Bikrami, Krishan Dayal plaintiff filed suit for dissolution of partnership and rendition of accounts against Chandu Ram and Munshi Ram. A preliminary decree for dissolution of partnership and rendition of accounts was awarded in that suit on March 28, 1951. The decree was affirmed on appeal by the District Judge and the Judicial Commissioner. Shri R.C. Sawhaney Advocate was appointed Local Commissioner in pursuance of the preliminary decree to go into accounts. The Local Commissioner submitted a report dated April 6, 1958 to the effect that the plaintiff was entitled to recover Rs. 374/1/3 from defendant No. 1 and Rs. 3115/15/6 from defendant No. 2. Rs. 27,526/-/0 were thus found to be due from the two defendants to the plaintiff. Objections were filed by the plaintiff as well as by the defendants to the report of the Local Commissioner. The trial Court set aside the said report.

Instead of appointing another Commissioner for going into the accounts, the learned trial Judge made an attempt to go into the accounts. The conclusion reached by him was that it was not possible to go into the accounts of partnership as both the parties were withholding important and material account books. The trial Judge thereupon raised a presumption against the plaintiff under clause (g) of Section 114 of the Evidence Act on account of non-production of the account books which were in his possession, and dismissed the suit.

The plaintiff then went up in appeal to the Court of District Judge, Mandi and Chamba. The learned District Judge found that the Local Commissioner, who had gone into the accounts, had committed serious errors. The District Judge, accordingly, agreed with the trial Court that there were sufficient grounds for setting aside the report of the Local Commissioner. The District Judge then went into the question as to whether the plaintiff had withheld material account books. The learned Judge agreed in this respect also with the trial Court and came to the conclusion that the plaintiff had failed to produce material account books which were in his possesssion. As such, the plaintiff was held not entitled to claim rendition of accounts. Reliance in this connection was placed upon the case of Debendra Narayan Singh v. Narendra Narayan Singh (1). It was then brought to the notice of the learned District Judge that Rs. 16,000/- had been deposited by Munshi Ram defendant in Court when resin belonging to the partnership was released in his favour the said resin was thereafter sold by Munshi Ram defendant

In the view of the District Judge the parties were entitled to the amount of Rs. 16,000/- in accordance with their shares in partnership. The plaintiff was, accordingly, held entitled to get Rs. 6,000/- out of Rs. 16,000/- while the legal representatives of Chandu Ram defendant were held entitled to receive Rs. 8,000/- Munshi Ram defendant No. 2 was held entitled to receive the balance of Rs. 2,000/-.

In second appeal Mr. Malhotra on behalf of the plaintiff-appellant has challenged the findings of the Courts below on the point that the material account books were with the plaintiff and he failed to produce the same. It is urged that finding of the Courts below in this respect is based inter alia upon the statement of Baj Ram (DW2) who was produced before the Commissioner. Baj Ram died before he could be subjected to cross-examination. In the circumstances, according to Mr. Malhotra, the statement of Baj Ram is inadmissible in evidence. In respect of the above contention I find that it is the admitted case of the parties that Baj Ram used to maintain the accounts of the partnership business. Baj Ram was examined before the Local Commissioner on September 15, 1957. In his statement recorded on that day, Baj Ram stated that books for the first three years of the partnership business were in the possession of the plaintiff while the books for the Sambats 2003 and 2004 were in possession of defendant No. 1. Baj Ram was thereafter examined on September 18, 1957 as D.W. 2. Baj Ram could not be subjected to cross-examination as he died after he was examined-in-chief on September 18, 1957. The question as to whether the statement of a witness is admissible, and, if so, what weight should be attached to that statement in case the witness dies before his cross-examination, has been the subject matter of a number of decisions. In England it has been held that where the witness dies, or falls ill, before cross-examination, his evidence-in-chief is admissible, though its weight may be light. (See in this connection page 764 of Woodroffe and Ameer Ali’s Law of Evidence, 11th Edition). In Mongal Sen v. Emperor (2), a witness who had been examined by the prosecution but had not been cross-examined, was found to be too ill to attend the Court. The result was that he was never subjected to cross-examination. Argument was advanced that the statement of the witness being incomplete his evidence could not be considered. It was held that such evidence was admissible but the weight to be attached to it depended upon the circumstances of each case. In Diwan Singh v. Emperor (3) a witness, after being subjected to cross-examination for sometime, was not available. Question was mooted in the High Court as to whether the statement of the witness was admissible. Tek Chand, J., held that the statement of the witness was admissible though the value to be attached to it was a matter primarily for the trial Court. Reliance in this connection was placed upon
the following observations in Sarkar’s Law of Evidence, 5th Edition which were based upon an American case:

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“No general rule can be laid down in respect of unfinished testimony. If substantially complete and the witness is prevented by sickness or death or other causes (mentioned in Section 33, Evidence Act) from finishing his testimony, whether viva voce or by deposition, it ought not to be rejected entirely but submitted to the jury, with such observations as the particular circumstances may require. But if not so far advanced as to be substantially complete, it must be rejected.”

In the case of Maharaja of Kolhapur v. S. Sundaram Ayyar (4), question arose about the admissibility of the statement of a witness who had been examined-in-chief and was asked a few questions in cross-examination. The case was then adjourned but before the cross-examination of the witness could be resumed the witness died. It was held that the evidence could not be rejected as inadmissible though it could not have much value. Kumaraswami Sastri, J. observed:

“I think the correct rule is that the evidence is admissible but that the weight to be attached to such evidence should depend upon the circumstances of each case and that, though in some cases the court may act upon it, if there is other evidence on record, its probative value may be very small and may even be disregarded.”

On the facts of the case no weight was attached to the evidence of the witness. In Mt. Horil Kuer v. Rajab Ali (5), reliance was placed upon the observations in the cases of Maharaja of Kolhapur v. S. Sundaram Ayyar (4), and Mangal Sen v. Emperor (2), and it was held, while dealing with the deposition of the witness who had been examined-in-chief but had not been cross-examined,:—

“The weight to be attached to the evidence depends on the circumstances and the Court should look at the evidence carefully to see whether there are indications that by a completed cross-examination the testimony of the witness was likely to be seriously shaken or his good faith to be successfully impeached. In the present case no circumstances have been brought to my notice which would tend to the view that Jailal’s evidence was not entitled to weight.”

The matter came up before a Division Bench of Allahabad High Court (Allsop and Mathur, JJ.) in Ahmad Ali v. Joti Prasad (6). In that case the plaintiff produced a witness named Wazir Singh who had been employed by them to give evidence about some material facts. The witness died before he could be cross-examined and it was urged on behalf of the defendant-appellant that his evidence was not admissible. The learned Judges held that the statement of Wazir Singh was admissible. Reliance in this connection was placed upon the following observations in the Taylor’s Law of Evidence:—

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“In the event of the death or serious illness of a witness between his examination in chief and his cross-examination…in England both a late Master of the Rolls and a late Vice-Chancellor have in a civil case held that the evidence previously given by him is admissible, though the degree of weight to be attached to it is of course a question of fact.”

Reliance was also placed upon the Phipson’s Law of Evidence, and it was observed:

“The evidence of Wazir Singh was certainly admissible at the time he gave it and as I have said there is no provision in the Evidence Act that the evidence of a witness which is admissible at the time when he is examined should afterwards become inadmissible if it is not possible to cross-examine him.”

As against the above authorities, Mr. Malhotra has referred to the case of Narsingh Das v. Gokul Prasad (7) wherein a Division Bench held that the evidence of a witness, who died before his cross-examination, should not be admitted because the evidence had not concluded. Another case to which reference has been made on behalf of the appellant by Mr. Malhotra is Sundara Rajali v. Gopala Thevan (8), wherein a learned Single Judge of Madras High Court held that a deposition on which there was no opportunity at all to cross-examine is not admissible.

Wigmore has laid down the following principle in dealing with the statement of a witness who dies before his cross-examination:—

“But, where the death or illness prevents cross-examination under such circumstances that no responsibility of any sort can be attributed to either the witness or his party, it seems a harsh measure to strike out all that has been obtained on the direct examination. Principle requires in strictness nothing less. But the true solution would be to avoid any inflexible rule, and to leave it to the trial Judge, to admit the direct examination so far as the loss of cross-examination can be shown to him to be not in that instance a material loss. Courts differ in their treatment of this difficult situation; except that, by general concession, a cross-examination begun, but unfinished, suffices if its purposes have been substantially accomplished.” (see page 765 of Woodroffe and Ameer Ali’s Law of Evidence, 11th Edition.)

I have given the matter my consideration and am of the view that the statement of a witness in examination-in-chief, which was admissible at the time it was recorded, cannot become inadmissible by reason of the subsequent death of the witness before cross-examination. The absence of cross-examination would undoubtedly affect the value and weight to be attached to the statement of the witness, but it would not render the statement inadmissible or result in its effacement. So far as the question is concerned as to what weight should be attached to such statement made in examination-in-chief the Court has to keep in view the facts and circumstances of each individual case. Some of the factors which may be borne in mind are the nature of the testimony, its probative value, the status of the witness, his relationship or connection with the parties to the case, a likely animus which may colour his statement and any other factor touching the credibility of the witness which may emerge on the record. Regard must also be had to the fact that the witness has not been subjected to cross-examination. The Court should see whether there are indications on the record that as a result of cross-examination his testimony was likely to be seriously shaken or his good faith or credit to be successfully impeached. The Court may also adopt a rule not to act upon such testimony unless it is materially corroborated or is supported by the surrounding circumstances. If after applying that rule of caution, the Court decides to rely upon the statement of a witness who was examined in chief, but who died before cross-examination, the decision of the Court in this respect would not suffer from any infirmity.

In the instant appeal I find that it is the common case of the parties that Baj Ram was maintaining the books of account of the partnership. According to Baj Ram the account books of the first three years were with the plaintiff and of the remaining two years with defendant No. I. Baj Ram had apparently no animus against any of the parties and his statement shows that he did not want to favour any party. The learned District Judge has found that there are other material circumstances which go to show that the statement of Baj Ram in this respect is correct. It was observed:

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“The plaintiff has invested a big amount in the partnership business. In the natural course of things, he was expected to maintain a close watch over the business of partnership and its accounts. The account-books, filed on the record, show that the plaintiff had been taking active interest in the business of partnership and had been charging expenses for his visits to various places in connection with the business of the partnership. Gurbax Rai, a brother-in-law of the plaintiff, had been taking part in running the business of the partnership. It appears from the statements of Narpat Ram (PW6) and Ram Das (PW7) and the documentary evidence on record, that Chandu Ram defendant had abandoned the work and that an attempt was made to get his name deleted from the contract. The control of the partnership business appeared to have been taken over by the defendants in 2004 Bikrami. They had taken the resin extraction contract for that year in their own names and the name of the plaintiff was omitted. The circumstances, narrated above, go considerably to support the statement of Baj Ram (DW2) that the account books for the years 2000, 2001 and 2002 Bikrami were in possession of the plaintiff.”

Nothing has been shown to assail the above observations of the learned District Judge. After giving the matter my earnest consideration I find no sufficient ground to interfere with the finding of the lower appellate Court that the account books for the Bikrami years 2000, 2001 and 2002 were in possession of the plaintiff and that he willfully withheld material account books.

Question then arises as to what is the effect of the withholding of material account books. In this respect I find that according to illustration (g) under section 114 of the Evidence Act, the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The principle underlying the above illustration has been applied by their Lordships of the Supreme Court in cases wherein a party in possession of material document does not produce the same. It has accordingly been held that the non-production of a material document by a party to a case would make the Court draw an inference against that party. (see in this connection Atyam Veerraju v. Pechetti Venkanna (9) and Union of India v. Mahadeolal Prabhu Dayal (10). The principle underlying illustration (g) under section 114 of the Evidence Act has also been applied to a suit for rendition of accounts wherein a party to the suit withholds material account books. A Division Bench of the Calcutta High Court (Mookerjee and Panton, JJ.) in the case of Debendra Narayan Singh v. Narendra Narayan Singh (1) held:—

“In a suit for accounts, the non-production of account books by the party who has custody of them justifies the presumption under Section 114(g), Evidence Act, that they have been withheld, because if produced, they would have been unfavourable to his case. If he is the plaintiff and is claiming accounts though withholding papers, his suit is liable to be dismissed: Upendra Kishore v. Ram Tara (11) Chand Ram v. Brojo Gobind Doss (12). If he is the defendant who is liable to render accounts, the Court will proceed on the footing of evidence furnished by the plaintiff, and in doing so, may make all reasonable presumptions against him; see the observations of Phear.

J., in Syud Shah Aliahmad v. Bibee Nusibun (13) quoted with approval by Field, J., in Annoda Persad v. Dwarkanath (14),”.

The above dictum fully applies to the facts of the present case and in the circumstances I am of the view that the Courts below were justified in holding that the plaintiff was not entitled to claim rendition of accounts. Mr. Malhotra has referred to the observations in the case of Dipchand Golomal v. Kishanibai (15). In that case it was held that if a partner has books of accounts in his possession and would not produce them, an account may nevertheless be arrived at by presuming everything against him. Those observations were made in the context of a defendant withholding the material account books. In the present case, however, it is the plaintiff who is withholding the material account books. It is also significant that the defendants in the present case do not want that the accounts be gone into in spite of the non-production of the material account books by the plaintiff. As the only party, who expressed keenness for rendition of the accounts of the partnership, was the plaintiff and as he withheld material account books, the Courts below, in my opinion, rightly held that the accounts could not be gone into because of the default of the plaintiff-appellant.

The appeal consequently fails and is dismissed but, in the circumstances, I leave the parties to bear their own costs.

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