Shanmuganathan v. Vellaiswamy — 1996 DIGILAW 1166 (MAD)

Judgment :- 1. This revision petition is directed against the order of the District Munsif-cum-Judicial Magistrate, Keeranur, dated 15.11.1995 made in I.A. No. 462 of 1995 in O.S. No. 151 of 1995, ordering the said application filed by the respondent-plaintiff to recall P.W. 2 and permit the plaintiff to put questions in the nature of cross examination. 2. The suit was originally laid on the file on the Additional District Munsifs Court, Pudukottai and numbered as O.S. No. 148 of 1992 and later was transferred to the file of the District Munsifs Court, Keeranur, and renumbered as O.S. No. 151 of 1995. The respondent-plaintiff has examined one Arumugham as P.W. 2 in Chief on 4.1.1995. He was cross examined by the petitioner-defendants counsel on 9.1.1995. According to the petitioner-defendant, through cross-examination his counsel was able to elicit some statements from P.W. 2 and the respondent-plaintiff without re-examining the witness filed I.A. No. 462 of 1995 seeking permission of the court to recall P.W. 2 and permit the plaintiff to put questions in the nature of cross examination. The said application was resisted by the petitioner-defendant stating that after the chief examination and cross examination, a petition to treat ones own witness as hostile is not permissible in law and that the respondent-plaintiff is not entitled to seek any remedy. 3. The learned District Munsif by his order dated 15.11.1995, for the reasons recorded in paragraphs 3 and 4 of his order, allowed the said application. Aggrieved by the said order, the present revision has been filed by the defendant. 4. I have heard Mr. K. Surendranath, learned counsel for the petitioner and Mr. R. Sekar, learned counsel for the respondent. It is contended on behalf of the petitioner that the present application under S. 154 of the Indian Evidence Act is not permissible in law and that the court below has erred in permitting the plaintiff to cross examine P.W. 2, merely because he had admitted in cross examination that the defendant is in possession of the property. The court below ought not to have treated P.W. 2 as hostile witness, as he was speaking the truth about the possession by the defendant. The court below ought not to have treated P.W. 2 as hostile witness, as he was speaking the truth about the possession by the defendant. It is also submitted that the respondent-plaintiff without re-examining P.W. 2, after the cross examination was completed by the petitioner-defendant, has filed the present application under S. 154 of the Indian Evidence Act, seeking permission to cross examine P.W. 2. In support of his contention, Mr. K. Surendranath, learned counsel, placed strong reliance on the following rulings: (1) Tulsiram v. R.C. Pal Ltd. (AIR 1953 Calcutta 160); (2) Lalu v. State (AIR 1960 Calcutta 776); (3) Krutibas Shah v. Madhab Das (AIR 1961 Orissa 48) (4) Dahyabai v. State of Gujarat (AIR 1964 SC 563) (5) Sivhamurthy Swamy v. Agodi Songanno (AIR 1969 Mysore 12); (6) Saraswathamma v. Bhadramma (AIR 1970 Mysore 157) (7) Yusuf v. State of U.P. (1973 Crl. L.J., 1220) (8) Rabindra Kumar v. State of Orissa ( AIR 1977 SC. 170 ); and (9) State of Karnataka v. N. Somasekar ( 1993 (3) Crimes 763 ). 5. Per contra, Mr. Sekar, learned counsel appearing for the respondent-plaintiff contended that the order of the lower court in allowing the application is perfectly in order, since it is settled law that the court can allow cross examination of ones own witness without declaring him to be hostile. It is further urged that the grant of such permission by the court to the plaintiff does not amount to adjudication by the court as to the variety of the witness. He also contended that this Court will not interfere with the order of the court below, which was rendered in exercise of its judicial discretion and that too, when the reasoning of the court below is based on materials. In support of his contention, the learned counsel has cited the decisions in Ammathayarammal v. Official Assignee (AIR 1933 Madras 137 = 37 L.W. 233) and Sai Paul v. Delhi Administration ( AIR 1976 SC. 294 ). 6. In the instant case, a petition was filed by the respondent herein under S. 154 of the Indian Evidence Act, seeking permission to cross examine P.W. 2. S. 154 of the Indian Evidence Act reads thus: “The court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party”. S. 154 of the Indian Evidence Act reads thus: “The court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party”. S. 154 of the Indian Evidence Act confers a judicial discretion on the court to permit cross-examination and does not contain any conditions or principles which may govern the exercise of such discretion. However, such discretion must be judicial and properly exercised in the interests of justice. It is to be noted that a party could not normally be allowed to cross-examine its own witness and declared such witness as hostile, unless the court is satisfied that the statement of the witness exhibits an element of hostility or that he has reasiled from a material statement which he made before an earlier authority or that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth. 7. In this background, this court will have to see, whether the permission granted by the court below to recall P.W. 2 and to permit the respondent to put questions in the nature of cross-examination. P.W. 2 when he was examined in chief has deposed that the suit property is in the enjoyment of Vellaiswamy (plaintiff) and that the defendant (Shanmughanathan) has no possessory right. P.W. 2, was cross-examined on 9.1.1995 by the defendants counsel. In the cross-examination, he deposed that he came to the village in question only ten days before, that he was residing in his brothers house, that he is aware that Shanmughanathan is cultivating the land and that he is not deposing falsehood because he is known to the plaintiff. Since P.W. 2 supported the case of the opposite party, the present application has been filed under S. 154 of the Indian Evidence Act to recall him and put questions in the nature of cross-examination. Mr. K. Surendranath, learned counsel for the petitioner contended that the mere fact that the witness previously made a statement which is different from or inconsistent with his evidence in court, does not make him hostile. In the light of the rival contentions of both the learned counsel, this Court has to see whether the application as filed in the court below and ordered, is justified or not. 8. In the light of the rival contentions of both the learned counsel, this Court has to see whether the application as filed in the court below and ordered, is justified or not. 8. In Tulsirams case (AIR 1953 Calcutta 160) (supra), the Calcutta High Court held as follows: “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. I do not consider that there is any proposition in the law of evidence as I understand it, that a witness who is not partial or partisan in favour of the party calling him is on that ground alone to be treated as hostile. 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 court is given the discretion to permit the person who calls a witness to put any question to the witness which might be put to him in cross-examination. “That provision is enacted in S. 154, Evidence Act” “The purpose of such relaxation can only be to find out if the witness is one of truth and can be relied on because cross-examination is the most powerful and effective instrument for bringing out and testing truth. But that is far from saying that a witness is hostile whenever hie testimony is such that it does not support the case of the party calling him. Such a view would seriously undermine the independence, integrity and dignity of a witness in a court of law”. In Lalus case (AIR 1960 Calcutta 776) (supra), a Division Bench of the Calcutta High Court held as follows: “According to Mr. Mukherjee P.W. 11 Bajjunath Singh was declared hostile, by the learned judge on insufficient grounds, for, a witness is not necessarily hostile, “if in speaking truth as he knows and sees it, his testimony happens, to go against the party calling him and that a mere fact that at a Sessions trial a witness tells a different story from that told by him before the Magistrate does not necessarily make him hostile. O. No. 3 dt. O. No. 3 dt. 28.8.1957 shows, in respect of P.W. 11, that “the Public Prosecutor prays for courts permission to cross-examine the said witness on the ground that he made, some false statement to the detriment of the prosecution case”. This witness was brought to the court of Session for the first time, for, he, had not deposed before the trying Magistrate. It would have been usual for a judge to look to the statement made before the Investigating Officer to see whether the witness was actually resiling from the position taken during investigation. There is no indication anywhe re showing that this was done by the learned judge. The first question in cross-examination asked by the Public Prosecutor elicited this reply: “I do not remember if I stated to the Daroga that Ramabatar and Shyamlal were chased by people and were arrested after they had thrown bombs” The Investigating Officer had not been examined at that time and when he was subsequently examined, the prosecution did not put to him whether the witness had made that statement. There is, therefore, some force in Mr. Mukherjees contention that both before and after he was declared hostile, prosecution had not cared to lay a foundation for cross-examining its own witness”. The next decision relied on by the learned counsel is in Krutibas Sahus case (AIR 1961 Orissa 48) (supra) In that case, at the trial before the learned judge, three witnesses were called by the plaintiff including the plaintiff as P.W. 1, the alleged scribe of the document as P.W. 2 and another witness as P.W. 3 to prove payment of the consideration. On the side of the defence, two witnesses were called including the defendant himself as D.W. 1 and another witness as D.W. 2 who stated that the blank paper was given. The trial court accepted the version as pleaded in the written statement. The scribe of the document (P.W. 2) supported the defence version of the case stating that it was a blank paper on which no consideration passed. It is in this state of evidence that the trial court dismissed the suit. Hence, the plaintiff filed the revision petition before High Court. The High Court observed thus:— “Mr. The scribe of the document (P.W. 2) supported the defence version of the case stating that it was a blank paper on which no consideration passed. It is in this state of evidence that the trial court dismissed the suit. Hence, the plaintiff filed the revision petition before High Court. The High Court observed thus:— “Mr. S.N. Das Gupta, learned counsel for the plaintiff-petitioner herein, contended that the learned judge was wrong in rejecting the plaintiffs application to declare P.W. 2 as a hostile witness and permit him to cross-examine P.W. 2. I do not think that this contention is tenable in law. 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 is no proposition in the law of evidence that a witness who is not partial or partisan in favour of the party calling him is on that ground alone to be treated as hostile; 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 court is given the discretion to permit the person who calls a witness to put any question to the witness which might be put to him in cross-examination; that provision is enacted in “S. 154 of the Evid ence Act; S. 154 says nothing about declaring a witness hostile; it allows a party with the permission of the court at its discretion to cross-examine his own witness in the same way as the adverse party; ordinarily, a party calling his witness is not allowed to ask him these questions but this ordinary rule is relaxed in S. 154; the purpose of such relaxation can only be to find out if the witness is one of truth and can be relied on because cross-examination is the most powerful and effective instrument for bringing out and testing truth; but that is far from saying that a witness is hostile whenever his testimony is such that it does not support the case of the party calling him; such a view would seriously undermine the independence, integrity and dignity of a witness in a court of law (Tulsiram Shaw v. R.C. Paul Ltd. AIR 1953 Cal. 160 ); In this state of the law of evidence as supported by authority cited above, I cannot accept the contention of the learned counsel for the plaintiff”. In Sivhamurthy Swamys case (AIR 1969 Mysore 12) (supra), the learned single judge of the then Mysore High Court held that the discretion, though is stated in wide terms, there is no doubt that it is a judicial discretion and is required to be exercised in a judicious way. It if further held as follows: “In normal cases where it can fairly be assumed that a party calling a witness represents to the court that he is a trustworthy witness, an occasion for the party calling him to seek permission under S. 154 of the Evidence Act can arise only where he unexpectedly gives an answer Which is adverse to his case. Even there, it is not enough if the party feels that the witness is hostile to him; it is necessary that the court should come to entertain an opinion that the witness has such hostile animus against the party calling him as to be inspired by a desire to speak the untruth or not to speak the truth”. . “Such a situation in my opinion, is not one which may, in any sense, be said to entitle the petitioner to seek permission of the court under S. 154 of the Evidence Act to cross-examine the witness. If he took the chance of this witness making some answer in favour of his case, he must also take the risk of the witness changing his case by his other answers. To hold otherwise would be to bring about a situation which is clearly unfair to the respondents”. It may be that the witness may admit some facts and deny some fact. Whether those admissions or denials are secured either in the course of the cross-examination on behalf of the respondent, the court is not relieved of the duty of assessing their truth in the light of the entire evidence placed before it. If both the parties fail to elicit from the witness information which is relevant to this enquiry, the court is not powerless; it can nevertheless intervene under S. 165 of the Evidence Act if it entertains the opinion that it is necessary to do so in the interests of discovering the truth. If both the parties fail to elicit from the witness information which is relevant to this enquiry, the court is not powerless; it can nevertheless intervene under S. 165 of the Evidence Act if it entertains the opinion that it is necessary to do so in the interests of discovering the truth. In such an event, it would also give liberty to both the parties to cross-examine the witness upon topics covered by examination by the court”. In Saraswathammas case (AIR 1970 Mysore 157), Somanath Iyer, J. has observed that a witness cannot be treated as hostile merely because his evidence is favourable to the other side, and the fact that the witness has become hostile has to be established by eliciting information such as could give an indication of hostility. In Yusufs case (1973 Crl. L.J., 1220 ( supra ), a Division Bench of the Allahabad High Court held as follows: “A witness cannot be treated as hostile merely because his evidence is favourable to the other side. A hostile witness is one, who, from the manner in which he gives evidence, shows that he is not desirous to give the truth to the court. The fact that the witness was willing to go back upon his previous statement would be one of the circumstances which may lead to that conclusion, but the mere fact that the evidence of a witness tends to be favourable to the accused of what is elicited by the defence in cross-examination would not be a valid ground to declare such a witness as hostile. There is no principle that a witness, who is not partial or partisan to the prosecution, is to be treated as hostile”. In Rabindra Kumars case ( AIR 1977 SC. 170 ) ( supra ), the Apex Court held as follows: “Before proceeding further we might like to state the law on the subject at this stage. S. 154 of the Evidence Act is the only provision under which a party calling its own witnesses may claim permission of the court to cross-examine them. The section runs thus: “The court may, in its discretion permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party”. S. 154 of the Evidence Act is the only provision under which a party calling its own witnesses may claim permission of the court to cross-examine them. The section runs thus: “The court may, in its discretion permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party”. The section confers a judicial discretion on the court to permit cross-examination and does not contain any conditions or principles which may govern the exercise of such discretion. It is, however, well settled that the discretion, must be judiciously and properly exercised in the interests of justice. The law on the subject is well settled that a party will not normally be allowed to cross-examine its own witness and declare the same hostile, unless the court is satisfied that the statement of the witness exhibits an element of hostility or that he has resiled from a material statement which he made before the earlier authority or where the court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth. One of the glaring instances in which this court sustained the order of the court in allowing cross-examination was where the witness resiles from a very material statement regarding the manner in which the accused committed the offence”. In N. Somasekhars case ( 1993 (3) Crimes 763 , a learned single judge of the Karnataka High Court has observed as follows: “The learned sessions judge after hearing both sides has rejected this application. It is settled law that S. 154 of the Evidence Act empowers the court to permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of his cross-examination, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examination-in-chief (Dayabhai Chhaganbhai Thakkar v. State of Gujarat ( AIR 1964 SC. 1563 ) A party will not normally be allowed to cross-examine its own witness and declare him hostile, unless the court is satisfied that the statement of a witness exhibits an element of hostility or that he has resiled from the material statement which he made before an earlier authority or when the court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth. Before a witness can be declared hostile and the party examining the witness is allowed to cross-examine him, there must be some material to show that the witness is not speaking the truth or has established an element of hostility to the party for whom he is deposing ( Rabindra Kumar v. State of Orissa ( AIR 1977 SC. 170 ). Before permitting the prosecution to cross-examine the prosecution witness the judge will have to examine the statement made by the witness before the Investigating Officer to find out whether the witness is really hostile to the party calling him. He may have to consider the manner in which the witness answers the questions, his demeanour while answering questions to examine whether he is attempting to tamper the case of the prosecution. The discretion of granting permission is a j udicial discretion and is required to be exercised in a judicious way. Therefore, the witness could be regarded as hostile only if the court is of the opinion that the witness is hostile to the party calling him and that he is not desirous of telling the truth”. 9. I shall now deal with the judgments cited by the learned counsel for the respondent-plaintiff in support of his contentions. In Ammarthayarammals case (AIR 1933 Madras 137 = 33 L.W. 233) (supra), a Division Bench of this Court has held as follows: “Before the party calling the witness can cross-examine him, it is not necessary that the witness should first of all be declared to be hostile and questions to cross-examine can be allowed by the court to be asked even though the witness does not show himself to be hostile. .. “When the court has exercised its discretion under S. 154, it ought not to be interfered with by the appellate court. .. “When the court has exercised its discretion under S. 154, it ought not to be interfered with by the appellate court. It is not an implication that a party when he cross-examines a witness called by him thereby intends to discredit his evidence in toto the cross-examination may be directed only to overthrowing certain parts of his evidence; and a court or a jury is not bound to entirely disbelieve a witness because a portion of his testimony has been discredited in cross-examination”. In Sat Pauls case ( AIR 1976 SC 294 ) (supra), it has been held as follows: “The discretion conferred by S. 154 on the court is unqualified and untrammelled, and is apart from any question of “hostility”. It is to be liberally exercised whenever the court from the witnesss demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as “declared” hostile”, “declared unfavorable” the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that hadd so long vexed the English Courts”. 10. In the instant case, the court below for the reasons recorded in its order exercised its discretion under S. 154 of the Evidence Act. As pointed out by the Supreme Court, the power conferred under S. 154 is to be liberally exercised whenever the court finds from the tendency of the answer, demeanour, etc. and grant such permission to the party to recall the witness and cross-examine him, which is not only expedient but also to extract the truth to do justice. In my view, the grant of such permission does not in any way affect the rights of the petitioner-defendant in further cross-examining the witness, P.W. 2 after the cross-examination by the plaintiff was over. The grant of such permission does not amount to adjudication by the court as to the veracity of the witness. In my view, the grant of such permission does not in any way affect the rights of the petitioner-defendant in further cross-examining the witness, P.W. 2 after the cross-examination by the plaintiff was over. The grant of such permission does not amount to adjudication by the court as to the veracity of the witness. When a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether and it is for the Presiding Officer to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. There is also no absolute proof that the evidence of an interested witness cannot be accepted without corroboration. 11. As pointed out by the various High Courts in the country and also by the Apex Court, it is rather difficult to lay down a rule of universal application as to when and in what circumstances the courts will be entitled to exercise its discretion under S. 154 of the Evidence Act. I am of the view, that the discretion to be exercised will depend upon the facts and circumstances of each case. Before a court exercises its discretion in declaring a witness hostile, there must be some material to show that the witness has gone back on his earlier statement or is not speaking the truth or has exhibited an element of hostility or has changed sides. In the instant case, though in chief examination P.W. 2 has deposed that the suit property is in the enjoyment of Vellaiswamy (plaintiff) and that Shanmughanathan (defendant) has no possessory right, has gone back on his earlier statement in the cross-examination and deposed that the defendant is presently cultivating the land in question and he is aware of the same, which only goes to show that the witness P.W. 2 had changed his loyalty within a few days from the date of his chief examination. Therefore, the lower court, on being satisfied that the witness has resiled from a material statement, which he made before the very court, has treated the said witness as hostile witness and permitted the plaintiff to cross-examine him. Therefore, the lower court, on being satisfied that the witness has resiled from a material statement, which he made before the very court, has treated the said witness as hostile witness and permitted the plaintiff to cross-examine him. I have already pointed out from the evidence of P.W. 2 that he has resiled from a material statement regarding possession and enjoyment of the property in question in a suit for bare injunction. In the instant case, the permission to cross-examine P.W. 2 was granted by the trial court because P.W. 2 had categorically stated in chief examination that the plaintiff is in possession and enjoyment of the property, but, however, resiled from that statement and gave a different answer in cross-examination that the defendant is cultivating the land in question. I have also carefully scanned and weighed the circumstances and also the evidence tendered by P.W. 2 before the court below. I am of the opinion that the court below has properly weighed the circumstances and has exercised its discretion properly. 12. It must also be pointed out that after P.W. 2 is cross-examined by the plaintiffs counsel, the counsel for the respondent will have the liberty to further cross-examine the witness on the answers elicited in cross-examination now permitted. In such an event, the lower court shall permit the adverse party, namely, the defendant to cross-examine the witness on the answers elicited by the plaintiff in cross-examination. The respondent-plaintiff cannot have any valid objection for the said course being followed. 13. Now that the Civil Revision Petition is disposed of finally, the examination of P.W. 2 will continue in the light of the above observations and subject to the liberty granted to the defendant to cross-examine witness on the answers elicited by the plaintiffs counsel in the cross-examination of P.W. 2. 14. The Civil Revision Petition, therefore, fails and shall stand dismissed. There will be no order as to costs. Consequently, CMP. No. 7587 of 1996 is dismissed.