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2016 DIGILAW 180 (TRI)

Sri Keshab Sarkar, S/o. Sri Vim Sarkar of Fatikcherra Shibir P. S. Lefunga v. State of Tripura

2016-08-10

S.C.DAS

body2016
JUDGMENT & ORDER : 1. Heard learned counsel, Mr. B. Deb for the petitioner and learned Addl. P.P., Mr. R.C. Debnath for the State-respondent. 2. A very simple question is involved in this revisional application. In course of trial of Sessions Case No. ST 51(NT/D) of 2012 before the learned Assistant Sessions Judge, Dharmanagar, P.W.4 was examined by the prosecution and after examination-in-chief was over let the witness for cross examination by the defence. After cross-examination of the witness was over, learned Public Prosecutor made an application for allowing the prosecution to declare the witness hostile and to cross examine him. The trial Court by order dated 14.06.2012 held that the prosecution cannot be allowed to declare the witness as hostile at that stage but the prosecution may re-examine the witness if desired. 3. Felt aggrieved, the accused preferred the present revisional application on the ground that application by the Public Prosecutor was made only to declare the witness as hostile and to cross-examine him and there was no prayer for re-examination and the trial Court, therefore, committed wrong allowing the prosecution to re-examine the witness whereas there was nothing on what point the prosecution will reexamine the witness. 4. I would like to refer here the provisions contained in Section 137 and 138 of the Evidence Act which read as follows:- “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. 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 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 reexamination 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-examine upon that matter.” 5. The above provision makes it abundantly clear that a witness should be examined-in-chief at first and thereafter he will be let for cross-examination by the defence. The above provision makes it abundantly clear that a witness should be examined-in-chief at first and thereafter he will be let for cross-examination by the defence. In course of examination-in-chief, prosecution with the permission of the Court may put leading questions to a witness in the form of cross-examination but once the witness is released by the prosecution after examination-in-chief for cross-examination, he cannot be recalled by the prosecution to declare him hostile and to put leading questions in the form of cross-examination. 6. Provisions contained in Section 138 clearly stipulate that a witness may be re-examined with a view to get an explanation of the matters referred to in cross-examination. It may be made clear that if a witness in his examination-in-chief made a particular statement in a particular form but in his cross-examination he made just a reverse statement to that of the statement made in examination-in-chief, the prosecution may pray before the court to allow re-examination of the witness for clarification of such position. If any new matter is introduced in the re-examination, the adverse party shall be allowed to cross-examine on such new matter. 7. By the impugned order the Court has observed that the prosecution may re-examine the witness but on which point re-examination will be made has not been made clear. I find no apparent illegality or impropriety in the order but to put the order in action prosecution must show before the trial Court as to on which point or regarding which statement made in cross-examination, which is in contradiction to the statement made in examination-in-chief, the prosecution likes to re-examine the witness. The trial Court will definitely ask the prosecution to make it clear before the Court as to on which point the prosecution likes to re-examine the witness and if the trial Court is satisfied that there is a statement made by the witness in cross-examination which is contrary to what stated by him in his examination-in-chief, the Court will definitely allow the re-examination and otherwise not. If any new matter is introduced in the re-examination, the defence should be allowed to cross examine the witness on that new matter. 8. With the above observation, the revisional application stands disposed of. 9. Send back the L.C. records along with a copy of this judgment.