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Rajasthan High Court · body

2011 DIGILAW 674 (RAJ)

C. P. Joshi v. Kalyan Singh Chouhan

2011-03-30

PRAKASH TATIA

body2011
Hon'ble TATIA, J.—Learned counsel for the petitioner sought to put certain questions to the witness in cross-examination with respect to casting of tender vote by Bargat Banu relating to vote cast at polling station No. 73 and for which petitioner alleged in the election petition that in place of Bargat Banu, someone else had cast vote and, therefore, she demanded tender vote, upon which, a tender vote was given to her which she cast. The petitioner prayed that earlier cast vote be excluded and tender vote cast by Bargat Banu be counted. 2. Learned counsel for the respondent seriously objected to the question's admissibility on the ground that witness did not depose anything with respect to the vote cast at polling station No. 73 initially or subsequently as tendered vote. According to the learned counsel for the respondent, the petitioner specifically pleaded the fact with respect to casting of vote at polling station No. 73 initially by one person and subsequently by taking alleged voter Bargat Banu in the form of tendered vote and the petitioner in his list of witnesses gave the name of Bargat Banu as petitioner's witness, then petitioner voluntarily dropped the witness Bargat Banu, which is evident from the order-sheet dated 30.8.2010. Therefore, according to learned counsel for the respondent, the petitioner closed his evidence with respect to his plea taken in para No. 15 of the election petition in relation to casting of tendered vote by Bargat Banu. In this background once the petitioner himself has chosen not to lead any evidence on this ground then the petitioner cannot in cross-examination put questions to the witness produced by the respondent for limited purpose to prove his case with respect to the tendered vote cast by one Seema whose name is entered at S.No. 173 of the marked electoral roll. According to learned counsel for the respondent in view of Section 146 to 154 of the Indian Evidence Act, the petitioner cannot put any question to such witness as referred above with respect to the subject matter which has not been deposed by the witness of the respondent in his examination-in-chief. 3. I considered the submissions of learned counsel for the parties and perused the facts of the case. 4. 3. I considered the submissions of learned counsel for the parties and perused the facts of the case. 4. It is not in dispute that respondent's witness Shantilal Kalal has not deposed with respect to any fact relating to the vote cast at polling station No. 73 either initially or subsequently in the form of tender vote. The question arises whether the witness of rival party can be asked to answer on the questions of facts for which he has not deposed in his examination-in-chief? However, Section 138 of the Indian Evidence Act is relevant for the purpose of deciding the present controversy. Section 138 is as under :- "138. Order of examination.—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 to 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 re-examination, the adverse party may further cross-examination upon that matter." 5. A bare perusal of second party of Section 138 of the Indian Evidence Act will reveal that cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Therefore, a witness can be cross-examined by the opponent without confining himself to the facts to which the witness testified in his examination-in-chief. 6. If we examine the Section 146 to 154 then it will reveal that these sections have not taken away the right which is available to the party cross-examining the witness as given by second para of Section 138. Section 146 provides that when a witness is cross-examined, he may, in addition to the questions referred in preceding sections can be asked any questions to test his veracity, to discover who he is and what is position in life, or to shake his credit, by injuring his character. However, there is exception that in a prosecution for rape or attempt to commit rape, it shall not be permissible to put question to commit rape, it shall not be permissible to put question in the cross-examination of the prosecutrix as to her general immoral character. However, there is exception that in a prosecution for rape or attempt to commit rape, it shall not be permissible to put question to commit rape, it shall not be permissible to put question in the cross-examination of the prosecutrix as to her general immoral character. Therefore, Section 146 has no direct relevant with the issue which is presently before us. 7. Section 147 has altogether different scope as it provides only that when witness to be compelled to answer and here is not the issue of compelling any witness to answer any question and in the same way Sections 148, 149, 150, 151, 152, 153 and 154 of the Evidence Act deals the entirely different subjects and not dealing with the right of the party during cross-examination and to scope within which the cross examination should be confined. 8. I do not find any force in the submission of learned counsel for the respondent that since the petitioner voluntarily dropped the witness Bargat Banu herself, therefore, the petitioner has waived the ground or dropped the ground or do not intend to press this ground raised on the basis of alleged casting of tender vote by Bargat Banu. It is clear from the order dated 30.8.2010 that the petitioner only requested for closure of evidence of Bargat Banu and had not dropped his ground nor withdrew the ground. The parties are always free to decide which of the witness or evidence will be sufficient to prove his case and which of the witness or evidence may not necessary for proving his case. It is not desirable for Court to examine during trial why one witness has not been examined or dropped in spite of giving his name in the list of witnesses and even after summoning of the said witness because it is right of the party dropping witness, however, it is at his own risk to be decided by the Court in the light of fact of each case but while deciding the case but not before that. At the time of cross-examination of a witness or even during entire evidence of the witness, the Court need not to assess what will be the effect of the evidence and Court cannot refuse to accept the evidence on the ground that better or more evidence was available, but has not been produced voluntarily, therefore, he cannot produce the evidence which in the opinion of adversary may not be of such great value. 9. Further more, purpose of cross-examination is not confined only to test the veracity in the statement of witness or to demolish him only. In the In Halsbury's Law of England, Fourth Edition Volume 17 (1976) published by Butterwords purpose of cross-examination has been explained at page No. 278, which is as under :- "278. Purpose of cross-examination. Cross-examination is directed to (I) the credibility of the witness; (2) the facts to which he has deposed in chief, including the cross-examiner's version of them; and (3) the facts to which the witness has not deposed but to which the cross-examiner thinks he is able to depose. Where the Court is to be asked to disbelieve a witness, the witness should be cross-examined; and failure to cross-examine a witness on some material part of his evidence, or at all, may be treated as an acceptance of the truth of that part or the whole of his evidence." 10. If viewed from this angle then a witness can be cross-examined and the questions can be put to him during cross-examination, which the cross-examiner thinks that witness will be able to depose. Further more, the parties alleging any fact has right to not only prove the fact from his own evidence or with the help of his witness and documents, but also has right to prove his case from the opponent's witness and, therefore, if the witness can depose on the question of fact during cross-examination with respect to the fact pleaded by his opponent then certainly, he is a witness for the question of fact and therefore also, the cross-examiner gets the right to bring on record the evidence with respect to the fact in issue relevant for the purpose of deciding petition and he cannot be denied to cross-examine the witness merely because the witness is produced by the opponent. 11. 11. Keeping in mind above legal position, if we look into the fact position of present petitioner then the petitioner in this election petition in para 15 clearly pleaded about initial casting of vote at Polling Station No. 73 where voter Bargat Banu claimed that in her place some other voter had cast vote and she demanded tender ballot and which was given to her and she had cast tender vote. the witness was the Presiding Officer posted at Polling Station No. 73 and he is being asked to answer the question in relation to the above facts and on the basis of these facts pleaded by the petitioner, issue has been framed by the Court that whether vote cast in the name of Bargat Banu initially was some impersonator and subsequently cast vote in the form of tendered vote required to be counted after excluding initial vote cast in the name of Bargat Banu, therefore, the question sought to be put to the witness is with respect to the fact pleaded by the petitioner and in relation to the issue framed by the Court. 12. In view of the above reasons, the objections raised by the learned counsel for the respondent is rejected.