Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 634 (CAL)

Pulak Banik v. The State of West Bengal

2010-06-16

ASHIM KUMAR ROY

body2010
JUDGMENT: 1. In course of a sessions trial relating to offences punishable under Sections 489B/489C/120B of the Indian Penal Code, the prosecution examined one Kali Khatik as P.W. 5. Since the said witness did not support the prosecution case and resiled from his earlier statement made to the police during investigation he was declared hostile and was cross-examined by the prosecution. Then the said witness was cross-examined by the defence, After such cross-examination of the witness by the defence was over the prosecution moved another application seeking permission from the Court to further cross-examine the said witness on the ground that the witness during his cross-examination by the defence made out a third case. The Trial Court allowed such prayer of the prosecution, hence this criminal revision. 2. Heard the Learned Counsels appearing on behalf of the parties, Perused the materials on record as well as the impugned order and the case laws cited by the parties. 3. There is no dispute if a prosecution witness during his examination-in-chief stuck to his version as was expected by the prosecution, but during his cross-examination by the defence in a subtle way showed his propensity to support the case of the accused and in effect contradicting his statement in chief, in such a case the prosecution has every legitimate right to declare the said witness hostile and to cross-examine him even after cross-examination by defence. There is no particular stage at which the prosecution will be permitted to cross-examine its own witnesses. Section 154 of the Evidence Act permits for cross-examination of its own witness by the party calling it, and which runs as follows; Section 154 of the Evidence Act:- Question by party to his own witness. “154. 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.” 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 scope of this section is very wide and does not contain any condition or principle which may govern the exercise of such discretion. But indisputably such discretion must be exercised judiciously and properly and in the interest of justice. The scope of this section is very wide and does not contain any condition or principle which may govern the exercise of such discretion. But indisputably such discretion must be exercised judiciously and properly and in the interest of justice. The law on the subject is further well settled and no party be allowed to cross-examine its own witness and declared him 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 any earlier authority or where the Court is satisfied that the witness is not speaking the truth or has changed sides and transferred its loyalty to the adversary, i.e., he has been gained over and it may be necessary to cross-examine him to get out the truth. In this regard the reliance may very well be placed on the following cases, viz., (i) Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat, reported in AIR 1964 SC 1563 , (ii) Koli Lakhmanbhai Chanabhai Vs. State of Gujarat, reported in 2000 SCC (Cri) 13, (iii) Bhagwan Singh Vs. The State of Haryana, reported in 1976 SCC (Cri) 7 and (iv) State of Rajasthan Vs. Teg Bahadur, reported in 2005 SCC (Cri) 218. 4. Now, coming to the case at hand and going through the deposition of P.W. 5 Kali Khatik, I find that from the very beginning the witness did not support to the prosecution case. When was examined in chief he categorically stated that he did not know nor remember about any incident which took place on September 17, 2008 and also do not know for which case he has come to Court to depose. However, during his cross-examination by the prosecution he admitted his signature on the seizure list as well as on the label pasted on the envelops. However, during his cross-examination by the prosecution he admitted his signature on the seizure list as well as on the label pasted on the envelops. He also admitted the other witness P.W. 4 Golam Bari put his signature on the seizure list and on the label but he denied to have stated to the police, when this petitioner was searched by the police from his possession counterfeit currency notes were recovered and also did not state to the police that thereafter police seized the same between 9.10 hours to 20.50 hours after preparing seizure list in presence of him and others and he put his signature voluntarily on the seizure list and on the sealed packet. However, this witness in his cross-examination by the defence stated that he signed on the seizure list and the labels of the envelops sitting at New Market Police Station as well as put his signature on blank papers, which would certainly be a destructive statement to the prosecution case. 5. It is well settled that upon a witness being declared hostile his evidence does not automatically washed off and on the other hand that part of the evidence of such witness can very well be acted upon which is consistent with the prosecution case. But the position is otherwise when in spite of the fact the prosecution witness has not supported the genesis of its case, still he has not been declared hostile and in such case the accused can always rely on his evidence to prove his innocence. 6. Now having regards to the facts and circumstances of the present case, I am of the opinion that the Learned Trial Court has not exercised his discretion erroneously or illegally in permitting the prosecution to cross-examine the P.W. 5 Kali Khatik even after he being cross-examined by the defence. However, I make it clear the cross-examination of P.W. 5 Kali Khatik by the prosecution shall be limited to his evidence as regards to time and signing as well as the place where it was signed which according to the prosecution case is not true. This criminal revision has no merit and accordingly stands dismissed. Interim order, if any, stands vacated. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgment to the parties, if applied for, as early as possible.