“The law as to the position of evidence of a witness who died before cross-examination on his evidence in chief appears to be settled. It is clear that it is accepted that such evidence is legal but the weight to be attached to such evidence should depend upon the circumstances of each case. In Rex v. Doolin: Jebb C.C. 123 where a prosecution witness was taken seriously ill whilst under cross-examination, his evidence was taken into consideration, and the conviction based on it was held good. And in Davies v. Otty (1865) 34 L.J. Ch 252 where a witness gave her evidence on 28th August and she died two or three days afterwards so that it was not possible to cross-examine her on her evidence, Lord Romilly Master of the Rolls said:- “but as there was no impropriety and nothing wrong in examining her, and as she was not kept out of the way to prevent cross-examination, I must receive her evidence and treat it exactly as I should the evidence of any other witness who, from any other cause whatever, either had not been or could not have been cross-examined.” All English authorities as well as Indian authorities on this point were referred to in the Indian case Kuer v. Rajab Ali, All I.R. (1936) Patna 34.”
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