- (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 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 v. State of Gujarat, 1964 AIR(SC) 1563, (ii) Koli Lakhmanbhai Chanabhai v. State of Gujarat, 2000 SCC(Cri) 13, (iii) Bhagwan Singh v. The State of Haryana, 1976 SCC(Cri) 7 and (iv) State of Rajasthan v. Teg Bahadur, 2005 SCC(Cri) 218.;