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Mere apprehension of death of a witness cannot be a sufficie

Mere apprehension of death of a witness cannot be a sufficient cause for immediate examination of a witness.

 
 The appellate courts adopted a rather unusual course, and drew adverse inference on the basis of the non-examination of the appellant/plaintiff, Smt. Laxmibai, observing that considering her old age, she could have taken recourse to the procedure, prescribed under Order XVIII Rule 16, Code of Civil Procedure, 1908, which lays down, that where a witness is about to leave the jurisdiction of the court, or where some other sufficient cause is shown to the court owing to which it would be prudent for it to ensure that his evidence is taken immediately, the court may, upon the application of the party or of the witness at any time after the institution of the suit, take the evidence of such witness/party, in the manner provided therein.
The appellant was just above 70 years of age and hale and hearty. She was not suffering from any serious ailment e.g. cancer or has been on death bed. Thus, there was no occasion for her to file an application under Order XVIII Rule 16 CPC which provides for taking evidence De Bene Esse for recording statement prior to the commencement of the trial. Mere apprehension of death of a witness cannot be a sufficient cause for immediate examination of a witness. Apprehension of a death applies to each and every witness, he or she, young or old, as nobody knows what will happen at the next moment. More so, it is the discretion of the court to come to a conclusion as to whether there is a sufficient cause or not to examine the witness immediately.
 
 
Supreme Court of India
Laxmibai (Dead) Thru Lr'S. & Anr. vs Bhagwanthbuva (Dead) Thru Lr'S. & ... on 29 January, 2013

https://www.lawweb.in/2013/06/mere-apprehension-of-death-of-witness.html



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