Evidence of deposition in former trials is admissible, as it forms an exception to the hearsay rule. Depositions are, in general, admissible only after proof that the persons who made them cannot be produced before the Court to give evidence. It is only in cases where the production of the primary evidence is beyond the party’s power that secondary evidence of oral testimony is admissible.
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It may be noted that this provision deals with relevancy of evidence and not with mode of proof. If evidence is irrelevant, consent of the parties cannot make it relevant.
ADVERTISEMENTS:
It is only if all the conditions of S. 33 are satisfied that evidence given in a judicial proceeding becomes relevant. The Court may hold that such evidence is relevant, if it is satisfied by evidence, or by admission of the parties, that the requisite conditions are fulfilled. [Nathubhai v. Chhotubhai, (A.I.R. 1962 Guj. 68)]
Evidence given on a different occasion is admissible to contradict a witness (S. 115) or to corroborate him (S. 157).
It is also to be noted that a deposition of a witness taken in the proceedings before the Coroner cannot be taken in evidence under S. 33 of the Indian Evidence Act, at the trial of the case in High Court, the reason being that an inquiry before the Coroner is not a proceeding between the prosecutor and the accused. (Emperor v. Mahomed Usuf, 35 Bom. L.R. 1020)