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2014 DIGILAW 1109 (PNJ)

CHARAN KAUR v. HAKAM SINGH

2014-07-25

RAKESH KUMAR JAIN

body2014
JUDGMENT : RAKESH KUMAR JAIN, J. 1. This revision petition is against the order dated 21.10.2013 by which the learned trial Court has declared DW-1 Sohan Lal as a hostile witness. Learned counsel for the petitioner has submitted that the learned trial Court has erred in declaring the said witness as hostile without applying its mind and recording its satisfaction that the statement of the witness exhibits an element of hostility. In this regard, he has relied upon the decisions of the Madras High Court in S. Murugesan and 2 others Vs. S. Pethaperumal and 2 others, AIR 1999 Mad 76 and of the Supreme Court in Gura Singh Vs. The State of Rajasthan, (2001) 2 SCC 205 . 2. On the other hand, learned counsel for the respondents has argued that the Court has the jurisdiction to declare the witness hostile in view of Section 154 of the Indian Evidence Act, 1972 (for short 'the Act'). In this regard he has relied upon a judgment of Supreme Court rendered in Dahyabhai Chhaganbhai Thakker Vs. State of Gujarat, AIR 1964 SC 1563 . 3. I have heard learned counsel for the parties and examined the record with their able assistance. Before I advert to the facts of the case, it would be relevant to refer to Section 154 of the Act, which reads as under:- "154. Question by party to his own witness:- 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." 4. According to the aforesaid provision, it is the discretionary power of the Court to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party. However, the questions involved in the present case are (i) whether the Court does or does not have the jurisdiction to declare the witness hostile? and (ii) under what circumstances a witness can be declared hostile? 5. However, the questions involved in the present case are (i) whether the Court does or does not have the jurisdiction to declare the witness hostile? and (ii) under what circumstances a witness can be declared hostile? 5. To my mind, the reason given in the judgment in the case of S. Murugesan's case (supra) has to be followed as it has been held that a party will not normally be allowed to cross-examine his own witness and declare him hostile unless the Court is satisfied that the statement of witness exhibits an element of hostility or that he has resiled from a material statement or it is satisfied that the witness is not speaking the truth. In case of Gura Singh's case (supra), it was held that the Courts are under a legal obligation to exercise the discretion in a judicious manner by proper application of mind and keeping in view the attending circumstances. 6. It is submitted that the learned trial Court has committed an error while granting permission to declare the said witness as hostile without recording reasons. Had it been recorded in the impugned order that the statements of the witness in the examination-in-chief and in reexamination runs contrary to each other, the provision of Section 154 of the Act would have applied as per the law laid down by Madras High Court in S. Murugesan's case (supra) and Supreme Court in Gura Singh's case (supra). However, in the absence of any such reason, which is contrary to Section 154, as well as the settled law, which requires that the Court has to exercise its discretion in a judicious manner by proper application of mind, the impugned cannot be sustained. Therefore, the revision petition is allowed and the impugned order is set aside.