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Volunteering Information

Court cases are always decided on the basis of the evidence recorded in the case. No effective judgment can be passed by the court without recording and appreciating the evidence fortifying the facts of the case. The trial of a civil case starts after framing of issues with the process of recording of evidence. Evidence consist is of two types i.e. Oral Evidence and Documentary Evidence. Witnesses are summoned/examined by both the parties to prove their respective cases. Some witnesses make only the oral deposition without referring to any document while other witness depose regarding the document written by them, attested by them or signatures/writing identified by them while other witnesses depose regarding the document scribed by them or attested by them or by identifying the signatures/writing of the executants/witnesses of these documents. The examination of a witness has been provided in section 137 of the Evidence Act, 1872 while cross examination of a witness is provided in section 138 of the Evidence Act.

The statement of a witness consist of three parts:-

1. Examination in chief is recorded by the party calling the witness

2. Witness is cross examined by the adverse party

3. Re-examination can be conducted with the permission of the court in case there crops up some ambiguity or a new fact is brought in the cross examination.

EXAMINATION IN CHIEF

Prior to the amendment of court of Civil Procedure, the examination in chief of the witness was recorded in open court in presence of the opposite party. The scenario has changed after the amendment of the Code of Civil Procedure in the year 2002. Under the amended provisions of order 18 Rule 4 CPC, the examination in chief has to be tendered by the party calling the witness in the form of a duly sworn affidavit. This practice has been adopted to save the time of the court in recording the examination in chief in open court. Such an affidavit is dictated, typed, signed and attested in the chambers of the advocates tendering the same. The opposite party has no control to object to the contents of the affidavit. Most of the High Courts have not framed any rules governing the preparation, contents and mode of exhibition of documents in the said affidavit.

An affidavit assumes the character of an affidavit after its attestation by the Oath Commissioner or Notary Public. As a logical consequence, photocopies of the attested affidavit ought to be supplied to the opposite party alongwith the true copy of the documents exhibited in such affidavit. Such a practice ought to be followed strictly. Adjournments are being sought by the unscrupulous litigants on the ground of non-supply of the copy of affidavit alongwith the documents with a view to delay the proceedings in the case. Most of the time, extraneous facts such as legal objections or other averments of the plaint are verbatim reproduced in the affidavit. Judges as well as the opposite party should be cautious enough at the time of tendering of affidavits in chief to object to the same. The court should ensure that photocopies of the attested affidavit with the copy of the documents exhibited ought to be supplied to the opposite party so as to avoid unnecessary adjournments on this ground.

CROSS EXAMINATION:-

Cross examination is a powerful and a valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of a story. The extent of its effectiveness, no doubt depends on the dexterity of the weilder of this weapon. But every cross examiner should and can if he is careful and indicate in cross examination, whatever part of the evidence given in the examination in chief is challenged and an omission to do will lead to the inference that the evidence is accepted subject of course to its being assailed as inherently improbable.^[2]

Woodroffes and Ameer Ali in their commentary on Law of evidence In India in 12thEdition(1969) has described aptly the role of the court in the following words:-

"The whole subject of the Viva Voce examination of witness in open court is confined of necessity to a very great extent to the sound judicial discretion of the judge presiding at the trial; and but few positive and unbending rules have been laid down with regard to it. The control of the Court here referred to, is that it possesses over the manner and the extent of an examination of a witness. The admissibility of testimony is another question. The time and manner, however, of examining the witness is in the discretion of the judge before whom the trial is held. The discretion extends to determine the length of time and the extent to which the witness may be examined. So, the judge may interfere and protect the witness against irrelevant inquiries and overrule a question repeated after being asked several times, substantially answered and allow the witness to furnish a proper answer in a proper manner to a question before permitting another to be put."

EFFECT OF AMENDMENT OF CODE OF CIVIL PROCEDURE

After the amendment of code of civil procedure, the task of recording the cross examination has been relegated to the Local Commissioner appointed for the purpose. The local commissioner has no power/control to decide the admissibility of the question. His job is clerical and to mechanically record the answer to the question. As a consequence thereof, lengthy, prolix cross examination is allowed to be recorded which is seldom referred to during the course of arguments. The expenses of the local commissioner for getting the cross examination recorded is postponed to several sittings putting unnecessary financial burden on the party.

Where commission is issued for examination of a witness, the commission has no power to disallow question, he considers irrelevant as he cannot be called a judge within section 138 of the Evidence Act.^[3]

In the opinion of the author, the cross examination of material witnesses should be recorded under the direct supervision of the judge who should intervene and curtail the lengthy cross and asking of irrelevant questions. Hasty disposal of cases often lead to injustice. The court ought to dispense justice and not dispense with justice.

VOLUNTEERING EVIDENCE

The latest trend which has started is that the witness in response to the answer to a specific question tends to repeat the facts already stated in the examination in chief or omitted to be stated in chief. Further such volunteering information/evidence leads to asking of volley of question to nullify the effect of such volunteering information. When objection is taken in this respect by the cross examiner, normally the judge allows the same to be recorded on the ground that it will be seen/adjudicated at the time of final arguments. Such a deferment is fraught with legal consequences. Often no decision is given in the final judgment.

Woodroffe'S and AmeerAli(Supra) has opined on this issue as under:-

"Volunteering evidence

A witness may not foist into his answer in any examination statements not in answer to the question put to him. This is called "Volunteering evidence" and the pleader of the opposite party should be on his guard to check its introduction by objection. The trial judge should upon motion strike out answers that are not in response to questions asked, i.e. those answers which state facts not called for by the questions or goes which express an opinion as in the case of experts. But when a part of the answer is not in response to the question, only, that part will be stricken out which is objected for not being responsive"

EFFECT

Applying the view expressed by the learned Authors(Supra), it is crystal clear that no volunteering information should be allowed to be recorded when an objection is being taken by the opposite party. Judicial file should not be overburdened by such uncalled utterances. In case, the question is ambiguous and is capable of admitting two answers, only then, the question should be recorded and the answer may also be recorded separately

For example if the question is asked as under:-

Q-Whether you have stopped beating your wife?

Such a question if answered by simple yes or no will lead to legal complications. Thus, the answer of the witness can be as under:-

A. Since I have never beaten my wife, as such, there is no question of stopping the same.

CASE LAW

The author has been able to lay his hands only on one judgment on this issue which has been rendered by the Bombay High Court wherein it was held that where a witness volunteers a statement and it is not in response to a question of counsel who is examining the witness. However, when the other party has no objection, the court may proceed with that part of the deposition which has come on record as a result of witness volunteering, to deal with the matter. If the opposite party objects to the same, then, it ought to be struck down.^[4]

[1] The author passed degree in Master of Laws from the Panjab University Chandigarh in the year 1978. He has been practicing on civil side at Ludhiana. He has been a guest professor in Panjab University Regional Centre, Ludhiana. He had judged various moot competitions held in PURC, Ludhiana. M No. 9814712425

[2] AIR 1954 TRAV & CO 152

[3] AIR 1960 Punjab 430

[4] 1998(2) MAH LR 843(Bombay)

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