Full Judgment
ORDER
SHEET TS No.7 of 2011 IN THE HIGH COURT AT CALCUTTA Testamentary & Intestate Jurisdiction NIRMAL KUMAR SAHA & ANR.
Versus DIPANKAR SAHA & ORS.BEFORE: The Hon'ble JUSTICE SOUMEN SEN Date:
21. t August, 2013.
Appearance: Mr.Dhruba Ghosh, Advocate Ms.Pooja Daschowdhury, Advocate ...for the plaintiffs/propoundeRs.Mr.Ratnanko Banerjee, Advocate Mr.Reetobroto Mitra, Advocate ...for the caveat ORS.The Court:
19. h dated July The word “attesting”.
mentioned in the order 2013 be deleted.
Let this correction be incorporated in the order dated 19th July 2013.
The examination-in-chief of the Manabendra Saharoy is concluded.
Dhruba Ghosh, learned counsel plaintiffs’ witness Mr.However, at this stage, Mr.appearing on behalf of the plaintiffs/propoundeRs.in view of the nature of the answers given by the witness, sought permission of this court to put questions to the said witness which ordinarily would have been put in crossexamination by the adveRs.party.
Mr.Ratnanko Banerjee, learned counsel appearing on behalf of the defendants/caveators submits that the condition precedent for declaring the witness as a hostile witness has not been fulfilled and accordingly he should not be declared as a hostile witness.
Section 154 of the Evidence Act, 1872 provides for impeaching the credibility of a witness by cross-examination.
However, the court may at its discretion permit cross-examination of a party’s own witness party.
which right is normally available to the adveRs.The said Section does not say anything about declaring a witness hostile.
The expression Indian Evidence Act.
where one witness”., could “hostile witness”.
is not mentioned in the It is a term imported from the English law find “unfavourable the terms witness”.
“hostile and witness”., “unwilling “adveRs.witness”.The rule of not permitting a party calling the witness to crossexamine is relaxed under the common law by evolving the terms “hostile witness”.
and “unfavourable witness”.Under the common law, a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him and an unfavourable witness is one called by a party to prove a particular fact in issue or relevant opposite test.
In India the right to cross-examine the witness by the party calling him is governed by the provisions of the Evidence Act, 1872.
Section 142 requires that leading questions cannot be put to the witness in examination-in-chief or in re-examination except with the permission of the Court.
The Court can, however, permit leading questions as to the matters which are introductory or undisputed or which have, in its opinion, already been sufficiently proved.
Section 154 authorizes the Court in its discretion to permit a person who calls a witness to put any question to him which might be put in cross-examination by the adveRs.party.
The Courts are, therefore, under a legal obligation to exercise the discretion vested in them in a judicious manner by proper application of mind and keeping in view the attending circumstances.
Permission for cross-examination in terms of Section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness.
[ AIR 200.SC 33.(335) :
2000. AIR SCW 443.:
2001. Cri LJ 48.:
2001. (2) SCC 20.].The witness would be considered hostile if the court is of the view that the witness is not desirous of telling the truth to the court.
A witness is not necessarily hostile because in the process of unfolding the truth he happens to depose something against the party calling him as a witness.
The primary allegiance of a witness is to the truth and not to the party calling him.
A witness is not necessarily hostile if in speaking the truth as he knows and sees it, his testimony happens to go against the party calling him.
There must be something in the deposition of such a witness before he is considered to be hostile which should conflict with his earlier statement, affording ground for believing that he has been won over by the defence.
The witness’s interestedness, his desire to suppress truth, his unwillingness to give answers to questions demonstrated by his temper, bearing, demeanor, etc.and all other circumstances are required to be taken into consideration to determine whether the said witness is to be treated as hostile if a request made by him or the party calling him.
In the instant case, Mr.Manabendra Saharoy, a practicing advocate, was called by the plaintiff/propounder to depose as an attesting witness to the last will and testament executed by the testator.
The witness duly identified his signature appearing in the said document and also identified the signatures of other attesting witnesses and the testator, namely, Deb Kumar Saha.
He was also shown a few photographs being Ext.-K and PD-14 to PD-19.
The witness said that he could identify the persons in PD-14 and PD-15 and he also duly identified the testator, himself, Anjan Chattopadhyay and Dipendra Chunder.
The witness, however, when asked to depose with regard to the video alleged to have been made of the entire incident during execution of the Will, deposed that he could not remember whether the video was taken or not and he had no knowledge about the videography.
In relation to the various photographs forming part of Ext.-K, he stated that such photographs were taken during execution of the document and such document might be a Will.
This Will was executed by Deb Kumar Saha and it was executed in his presence.
The witness, however, said that the document being Ext.-I is not a document which he had referred earlier in his deposition.
He stated that he had signed two or three documents but Ext.-I is not one of such documents as it contains interpolation and in view thereof, he declined to put his signature at the foot of the verification.
He further stated that the signature appearing in Ext.-I could be of Deb Kumar Saha and the expression “may be”.
was used because, according to him, the said interpolation was not done in his presence, namely, the date of execution in the fiRs.page and in the last page of the said exhibit.
He, however, did not admit the signature of Deb Kumar Saha and he stated that he was not aware of the signature of Deb Kumar Saha.
He further stated that Deb Kumar Saha was known to him and on the basis of the request of Deb Kumar Saha, he put his signature.
He was, however, aware of the nature of the document on which he was requested to put his signature.
In relation to Ext.J.the witness said that Deb Kumar Saha put the signature in his presence and it could be the signature of Deb Kumar Saha.
The witness, however, stated that he signed at the bottom of Ext.-J as a witness, as Deb Kumar Saha requested him to put his signature.
The witness, however, could no recollect at this moment whether Deb Kumar Saha put his signature before the witness signed the said document.
document and The refused witness to denied sign at the the execution foot of the of the said verification contending that the said Will was never executed in presence of the witness.
It was on such afore-stated evidence that Mr.Ghosh has prayed for declaring the said witness as hostile.
If the witness discloses a hostile animus against the party who called him, such party shall be permitted to cross-examine.
The permission unexpectedly to makes cross-examine some adveRs.should be statements given in if a witness examination-in- chief.
The principle governing granting permission to a party to cross-examine his own witness depends upon the nature of hostility exhibited by the witness.
There must be some material to show that the witness is not speaking the truth or has exhibited an element of hostility to the party for whom he is deposing before a witness can be declared hostile and the party examining the witness is allowed to cross-examine him.
The fact that a witness has become hostile has to be established by eliciting information which would give an indication of hostility.
The witness cannot be treated as hostile merely because his evidence is favourable to the other party.
The Court always aspires to find if the witness desires to tell the truth.
That aspiration is the yardstick, which measures the appreciation of the evidence of a witness.
It is with that object that the provision is enacted in section 154 giving the Court discretion to permit the person who calls a witness to put any question to the witness which might be put to him in crossexamination.
[ AIR 195.Cal 160 ].When evidence unexpectedly contrary sprung up to in the interest examination by of the his party own is witness, opportunity to test such statement by cross-examination should be given to the party if the evidence is to be relied upon.
[ (1902) 6 Cal WN 51.(524)(PC) ** AIR 197.SC 56.(575) :
1979. Cri LJ 47.:
1978. (4) SCC 48.].The witness recollect as was to not whether shown during the video execution of and is the unable Will a to video recording was made.
However, at certain places the witness appears to have admitted that he knew the testator and that he was requested to put his signature as an attesting witness to such Will, but he is unable to depose as to whether the Will annexed to the probate petition is the Will to which he had agreed to put his signature as an attesting witness.
On the basis of the evidence at this stage and without further evidence coming from the said witness showing that the witness is suppressing any truth, the Court is not inclined to declare the said witness as a hostile witness or to permit Mr.Ghosh to put questions to the witness which could adveRs.have party.
been However, put Mr.to him in cross-examination by the Ghosh is permitted to the to put witness further questions and pray for leave to put questions to the said witness which could have been put in cross-examination by the adveRs.party when further evidence of the said party shall commence.
The suit is fixed on 11th September 2013 for recording evidence of Manabendra Saharoy and Anjan Chattopadhyay, who is however unable to attend the court today due to some personal difficulty.
Let the adjourned date be communicated to the other witness, namely Anjan Chattopadhyay by the plaintiffs.
All parties concerned are to act on a signed photocopy of this order on the usual undertakings.
(SOUMEN SEN, J.) S.
Kumar A.R.(C.R.)