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Andhra High Court · body

2005 DIGILAW 606 (AP)

Syed Dastageer v. State Of A. P.

2005-07-08

G.YETHIRAJULU

body2005
( 1 ) THIS revision case is filed by A. 3 in Sessions Case No. 338 of 2003 pending before the V Additional Metropolitan sessions Judge-cum-Mahila Court Hyderabad for the offences punishable under Sections 376 and 384 read with Section 34 IPC. ( 2 ) IN this case trial commenced and p. Ws. 1 to 14 were examined on behalf of the prosecution. The Counsel engaged by the petitioner remained absent and did not cross-examine the witnesses. There was no advocate appearing for A. 1. Therefore, the lower Court recorded the cross-examination of A. 1 and the petitioner as nil. The revision petitioner filed an application under Section 311 Cr. P. C. praying to recall the witnesses for cross-examination. But, the lower Court rejected the petition on the following grounds:. . . A. 1 did not show any interest to cross examine the witnesses. Despite his Counsel giving up the Memo of Appearance on the first day itself, A. 1 did not choose to engage another Counsel and he came with this petition through another Counsel after examination of almost all the prosecution witnesses. The accused has been playing hide and seek game to gain time to cause inconvenience to the prosecution. He did not engage a Counsel with the said ulterior motive. It is not the case of the accused that he has no means to engage a Counsel. When once the witness is examined-in-Chief, it is the duty of the accused to cross- examine the witnesses on the same day, but not on the dates of his choice. He cannot expect the Court to act according to the dates of his choice. He cannot expect the Court to act according to his whims and fancies. The defence was given enough opportunity to cross-examine the witnesses, but they did not utilize the opportunity. Therefore, it is not fair and proper to recall the witnesses under the criminal jurisprudence. ( 3 ) IN the light of the above order of the lower Court, the point for consideration is: whether the petitioner is entitled for an opportunity to cross-examine the witnesses? point : ( 4 ) SECTION 137 of the Indian Evidence act deals with the Examination-in-Chief, cross-examination and Re-examination of the witnesses. It reads as follows: section 137. Examination-in-chief : The examination of a witness by the party who calls him shall be called his examination-in- chief. point : ( 4 ) SECTION 137 of the Indian Evidence act deals with the Examination-in-Chief, cross-examination and Re-examination of the witnesses. It reads as follows: section 137. Examination-in-chief : The examination of a witness by the party who calls him shall be called his examination-in- chief. Cross-examination : The examination of a witness, by the adverse party shall be called his cross-examination. Re-examination : The examination of a witness, subsequent to the cross-examination by the party who called him shall be called his re-examination. ( 5 ) THE object of the Chief-examination is to elicit from the witness all the facts or such of them as he can testify in order to prove the case of the party calling him. ( 6 ) SECTION 138 of the Evidence Act speaks about the order of examinations. Section 138 of the Evidence Act reads as follows: section 138 : Order of examinations : witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross- examined then (if the party calling him so desires) re-examined. The examination and cross-examination must relate relevant facts, but the cross- examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination : The re- examination shall be directed to the explanation of matters referred to in cross- examination; and, if new matter is; by permission of the Court introduced in reexamination the adverse party may further cross-examination upon that matter. ( 7 ) ACCORDING to Section 138 of the evidence Act the Cross-examination of every witness should follow his Examination-in- chief. ( 8 ) THE accused is not entitled as of right for postponement of cross-examination. However, the Court may grant such postponement on reasonable grounds i. e. , where the accused was undefended or the Counsel appointed to defend him had no instructions till that date. The cross examination can be deferred to the next day. But, in the trial Courts it has become a practice for the accused seeking time for cross-examination of the witness as a matter of right and the Courts are liberally adjourning the matter at the request of the counsel representing the accused. The cross examination can be deferred to the next day. But, in the trial Courts it has become a practice for the accused seeking time for cross-examination of the witness as a matter of right and the Courts are liberally adjourning the matter at the request of the counsel representing the accused. ( 9 ) IN the present case, the lower court observed that though the Counsel of a. 1 gave up the Memo of Appearance on the first day itself, A. 1 did not choose to engage another Counsel and has been playing hide and seek game to gain time and to cause inconvenience to the prosecution. The Court should also take steps to provide legal assistance at the State cost if the accused are undefended. ( 10 ) THE object of the cross-examination is (1) to test the credibility of the witness; (2) to test the truthfulness of the facts which he has stated in chief-examination; (3) to put the defence version in the mouth of the witness; (4) to know the facts which the witness did not state. The further object of the cross-examination is two foldto weaken, to qualify or destroy the case of the opponent and to establish the parry s own case by means of his opponent s witnesses. The further objects are to impeach the accuracy, credibility, and general value of the evidence given in chief, to sift the facts already stated by the witness, to detect and expose discrepancies, or to elicit suppressed facts, which will support the case of the cross-examining party. The exercise of this rights is justly regarded as one of the most efficacious tests, which the law has devised for the discovery of truth. By means of it the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, his inclination and prejudices, his character, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory and description are fully investigated and ascertained and submitted to the consideration of the Court which will have an opportunity of observing his demeanour, and of determining the just value of his testimony. ( 11 ) NO evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination. It is certainly implied by Section 138 that a party must have had an opportunity to cross- examine and it does not mean that merely a right to cross-examine a witness without an opportunity being offered for cross examination is sufficient compliance with the requirements of law. ( 12 ) SECTION 311 of Ihe Code of Criminal procedure, 1973 speaks about the power to summon material witness, or examine a person present in the Court. It reads as follows: 311. Power to summon material witness, or examine person present:any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. ( 13 ) SECTION 311 confers a wide discretion on the Court to act, as the exigencies of justice require. The first part of Section 311 is discretionary. The discretion shall be exercised judiciously. Section 311 enables a Court at any stage (1) to summon any one as a witness; or (2) to examine any person present in the Court; or 3) to recall and re-examine any witness. The second part of Section 311 is mandatory. It compels the Court to take any of the above steps if the new evidence appears to be essential to the just decision of the case. There is no limitation on the power of the court arising from the stage to which the trial may have reached, provided the Court is of bona fide opinion that for the just decision of the case, the step must be taken. The object of the section is to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence, which is necessary for a just decision of the case. ( 14 ) DENYING the opportunity of cross- examination to the accused amounts to denial of justice, and I am therefore inclined to set aside the order of the lower Court. ( 14 ) DENYING the opportunity of cross- examination to the accused amounts to denial of justice, and I am therefore inclined to set aside the order of the lower Court. ( 15 ) THE V Additional Metropolitan sessions Judge-cum-Mahila Court is directed to recall the witnesses who were not already cross-examined and whom the accused want to cross-examine, after ascertaining from the petitioner and others whether they are ready to cross-examine the witnesses either by themselves or through their Counsel. ( 16 ) THE criminal revision case is accordingly allowed at the admission stage.