Inconsistency of recording evidence

Recurrently an argument resonates in our legal arena about expunging the recorded evidence of the witnesses whose depositions (examination-in-chief) were recorded without cross-examination. The argument is that the evidence given in examination-in-chief cannot be considered and should be expunged in that case. Consequently, another argument is placed that as there is no evidence in such a case the side which produced the witness is not entitled to get the relief what they sought.
Quite the reverse, 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 and inadmissible only because of the reason that they could not be cross-examined or could not be found for cross-examination at a subsequent stage of the litigation. 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 but if the witnesses cannot be brought again in the Court for some unavoidable reasons despite the 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 benefitted only for the reason of non-cross-examination of the witnesses such a decision will seriously jeopardize and prejudice the party which produced the witnesses.

Addressing the legal answer to the paradox
At this instant, to find a feasible answer I would like to venture to enter into the legal aspect of the 'expunge of evidence' issue. In the Criminal Justice System of this Country where adversarial adjudication mechanisms are predominantly prevailing the witnesses are very much reluctant to come to the Courts to depose owing to various socio-political embargos and hazards. Similar situation exists in the administration of civil justice too. Despite all such factors the litigant people or the law-enforcing agencies, as the case may be are producing the witnesses to depose at the Courts-of-law with the initiatives of the Courts and the Prosecution in course of the trial.
In such a trial when 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 defense, the said witness did not turn up for his further cross-examination in spite of repeated opportunities being given by the Court, the Trial Court is not obliged to go on granting adjournments to the witness for indefinite period and in such case it would be just and 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 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 arise when there is any order of a superior Court for de-novo trial from the stage of framing of charge. 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 more apt to refer the observation of the Calcutta High Court in the case of Dever Park Builders Prt. Ltd. & Ors. v Smt. Madhuri Jalan & Ors., reported in AIR 2002 Calcutta 281. In the said decision at paragraph 10 the Court observed that in a case in which there is one and singular stage in the proceedings Section 33 of the Evidence Act will not at all be helpful nor it is applicable there.
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 judgment 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. Upon careful reading of the said Section it would be apparent that the cross-examination is not a must nor as a matter course, or without the same the evidence given in examination-in-chief cannot be rejected nor expunged.
However, if the adverse party opts for, certainly, the cross- examination is a must. There is substance in the stance that there is no provision under law if the witness is not cross-examined either in full or part his evidence would be absolutely rendered inadmissible. A somewhat similar question came up for consideration before the Honorable 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 above case Honorable 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 not tenable in the eye of law of evidence and it is for every reason liable to be discarded. In the similar circumstances the cases (where evidence is recorded in full or in part) should be adjudged upon evidence on record and in pursuant to the merit of the case in accordance with rules of evidence along with principles of legal justice.

The writer is a member of Bangladesh Judicial Service.