Bombay High Court
Mohd. Rafi @ Rafik Wali Mohd. Choudhary vs State Of Maharashtra on 17 June, 2022
Author: Prakash D. Naik
Bench: Prakash D. Naik
3-REVN-193-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO. 193 OF 2022
Mohd. Rafi @ Rafik Wali Mohd. Choudhary
Age : about 27 Years. Occ : Service,
Indian Inhabitant, Residing at the time of
arrest : Rizwan Apartments,
Aksa Masjid Road, Bandiwali Hill,
Jogeshwari (W), Mumbai 400 102.
Permanent resident of Darhal,
District Rajouri, Jammu and Kashmir
Currently incarcerated at Arthur Road
Central Prison as an under-trial prisoner ...Applicant
Versus
State Of Maharashtra ...Respondent
....
Mr. Gaurav Bhawanani i/by Mr. Khan Abdul Wahab, Advocate for the
Applicant.
Mr. A. R. Patil, APP for the Respondent - State.
CORAM : PRAKASH D. NAIK, J.
DATE : 17th JUNE, 2022.
PER COURT:
1. The applicant is prosecuted for offences punishable under
Sections 302, 376 & 511 of Indian Penal Code (for short 'IPC')
registered vide C.R. No.90 of 2016 with Oshiwara Police Station,
Mumbai. The First Information Report (for short "FIR") was
registered on 11th February, 2016. Applicant was arrested on 3rd
Digitally signed
by SAJAKALI
SAJAKALI LIYAKAT
JAMADAR
LIYAKAT Date: Sajakali Jamadar 1 of 9
JAMADAR 2022.06.28
14:08:51
+0530
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March, 2016. Charge-sheet was filed. The case is based on
circumstantial evidence. The grandmother of first informant was
found murdered in the house. The applicant was the watchman in
the building where deceased resided. Trial had commenced. 19
witnesses were examined.
2. The evidence of PW-15 Asif Sunasra was recorded by the trial
Court on 8th September, 2021. He is the Panch witness to seizure
panchanama dated 20th June, 2016. His examination-in-chief and
cross examination was completed on 8 th September, 2021. The
Court passed order of no re-examination. Subsequently, the
prosecution preferred an application Exhibit - 147 for recall of said
witness for conducting cross examination on 21 st September, 2021.
The ground for recall of witness urged by prosecution was that he
has not supported prosecution case, which and hence he has to be
cross examined which had inadvertently remained on the last date.
The application was opposed by defence by filing reply. By order
dated 27th November, 2021 the Sessions Court allowed the said
application. PW-15 was cross examined at the instance of the
prosecution. On perusal of the evidence of PW-15 brought on
record through the cross examination of the said witness by the
prosecution it is apparent that, it was a lengthy cross examination
running into several pages. After the cross examination by
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prosecution was completed, the defence made an application
seeking permission to further cross-examination of the said witness.
The application was opposed by prosecution. The learned Judge
vide order dated 1st March, 2022 partly allowed the said
application only to the extent of cross examination of PW-15 qua
photographs at Exhibit - 175 to 185. The applicant is aggrieved by
the order passed by the trial Court disallowing the cross
examination on the other issues.
3. Learned Advocate for the applicant submitted that PW-15
was extensively cross examined by prosecutor. New materials
including but not limited to the following was elicited.
i. Details about the seizure panchanama for which PW-15 Mr.
Sunasra was a panch witness;
ii. The appointment and duties of the Applicant as a
watchman in the building where the spot is situated;
iii. The layout of the building and society complex;
iv. The inter-connectivity of the wings of the buildings;
v. The presence and locations of CCTV cameras;
vi. The situation of the spot immediately after the incident
prior to spot panchanama;
vii. The learned Sessions Judge has erred in believing that,
there is no right to cross-examine a hostile witness and that
Indian Evidence Act, only permits examination in chief, cross
examination and the Act does not contemplate cross examination
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of a witness after he has been already cross examined.
viii. The learned Sessions Judge has committed an error in
allowing cross examination only in respect to Exhibit- 175 to
185. In view of the lengthy cross examination conducted by the
prosecution after the closure of the evidence of PW-15 several
new facts were also brought on record and therefore the accused
had right to cross examine the said witness.
4. Learned Advocate for the applicant relied upon the following
decisions :-
i. Pradhan s/o Murlidhar Potdar V/s. State of
Maharashtra1.
ii. Dahyabhai Chhaganbhai Thakkar V/s. State of Gujrat2.
iii. Bhajju alias Karan Singh V/s. State of Madhya
Pradesh3.
5. Learned APP submitted that there is no infirmity in the order
passed by the learned Sessions Judge. The order spells out reasons
for restricting cross examination on Exhibits 175 to 185. The law
does not prescribe the cross examination by the defence after the
witness is declared hostile and cross examined by the prosecution.
In the present case, witness was hostile during cross examination
by defense. After he was cross examined by prosecution, there is
no provision to allow cross examination by accused. The
1 [2005(2) - Mh.L.J. 226.
2 AIR 1964 SC 1563.
3 (2012) 4 SCC 327.
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examination-in-chief, cross examination and re-examination is
provided under Section 138 of Evidence Act. Section 154 of Code
of the Evidence Act, provides Courts discretion to permit the person
who calls a witness to put any questions to him which might be put
in cross examination by the adverse party.
6. The applicant is facing serious charge under Section 302 &
376 of IPC. From the record it is apparent that PW-15 was
examined by the prosecution. His examination-in-chief was
recorded. He was cross examined by defense. The Court proceeded
to pass order of no re-examination. After the evidence of PW-15
was ordered, the prosecution had preferred application for recalling
PW-15 for cross examination on the ground that he was hostile
during cross examination by defense. The application did not
specify on what point witness was hostile. On perusal of the cross
examination conducted by the prosecution it is apparent that cross
in conducted in detail which it is running into 14 pages. The
witness has been cross examined on several aspects even beyond
the cross examination conducted by the defence.
7. In the case of Pradhan s/o Murlidhar Potdar V/s. State of
Maharashtra (supra) the similar issue came up for consideration.
The factual matrix of the said decision indicate that, the accused
was prosecuted for offences under Prevention of Corruption Act.
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The prosecution examined complainant. He was cross examined by
defense. At a stage the public prosecutor declared him hostile and
requested the Court to grant permission cross examine him. The
Court granted the request. Thereafter, the public prosecutor cross
examined the complainant and concluded the same. The accused
filed application seeking permission to cross examine the
complainant on the ground that, the witness while in cross
examination of the public prosecutor, gave certain statements
against the accused. The trial Court rejected the request made by
the accused. The said order was challenged before High Court.
This Court referred to decision of Dahyabhai Chhaganbhai Thakkar
V/s. State of Gujrat (Supra); Gura Singh V/s. State of Rajasthan4;
Rammi V/s. State of Madhya Pradesh5. The application of accused
was allowed on the ground that, after declaring the witness hostile,
in the cross examination of prosecutor the witness made certain
statements which may go contrary to the statement made while the
witness was examined by the State. It wa submitted on behalf of
Petitioner that he had not completed his cross examination and
therefore, it would be in tune with legal position to allow cross
examination to a limited extent. In the case of Dahyabhai
Chhaganbhai Thakkar V/s. State of Gujrat (supra) it is observed
4 (2001) 2 SCC 205
5 1999 Cr.L.J. 4561
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that, Section 137 of the Evidence Act, gives only three stages in the
examination of a witness, namely examination in chief, cross
examination and re-examination. This is a routine sequence in the
examination of a witness. This has no relevance to the question
when a party calling a witness can be permitted to put to him
questions under Section 154 of the Evidence Act. That is governed
by the provisions of Section 154 of the Evidence Act, which confers
a discretionary power on the Court to permit a person who calls a
witness to put any questions to him which might be put in cross
examination by the adverse party. Section 154 does not in terms,
or by necessary implication confine the exercise of the power by the
Court before the examination in chief is concluded or to any
particular stage of the examination of the witness. It is wide in
scope and the discretion is entirely left to the Court to exercise the
power when the circumstances demand. To confine the operation
of Section 154 of the Evidence Act to a particular stage in the
examination of a witness is to read words in the Section which are
not there. It cannot be accepted that if a party calling a witness is
permitted to put such questions to the witness after he has been
cross-examined by the adverse party, the adverse party will not
have any opportunity to further cross-examine the witness on the
answers elicited by putting such questions. In such event, the
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Court, in exercise of its discretion, will permit the adverse party to
cross-examine the witness on the answers elicited by such
questions. The Court thereafter can permit a person, who calls a
witness, to put questions to him which might be put in the cross
examination at any stage of the examination of the witness,
provided it takes care to give an opportunity to the accused to cross
examine him on the answers elicited which do not find place in the
examination in chief. In the case of Bhajju alias Karan Singh V/s.
State of Madhya Pradesh (supra) in Paragraph-35 it is observed
that normally, when a witness deposes contrary to the stand of the
prosecution and his own statement recorded under Section 161
Cr.P.C. the prosecutor, with the permission of the court, can pray to
the court for declaring that witness hostile and for granting leave to
cross-examine the said witness. If such a permission is granted by
the court then the witness is subjected to cross examination by the
prosecutor as well as an opportunity is provided to the defence to
cross-examine such witnesses, if he so desires.
8. In the light of the principles of law as enumerated herein
above and applying the same to the factual matrix of this case, the
defence should have been permitted to cross examine the witness
on the issues referred to herein above. It is pertinent to note that
the learned trial court has not rejected the application on the
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ground that it is not permissible to do so under the law. The
application was partly allowed. In the light of lengthy cross
examination conducted by the prosecution and the facts brought on
record, the applicant was entitled to cross examine PW-15 in
relation to issues referred in ground 'd' this application and qua
Exhibits 175 to 185. Ground 'd' refers to following issues :
" i. details about the seizure panchanama for which
PW-15 Mr. Sunasra was a panch witness;
ii. the appointment and duties of the Applicant as a
watchman in the building where the spot is
situated;
iii. the layout of the building and society complex;
iv. the inter-connectivity of the wings of the
buildings;
v. the presence and locations of CCTV cameras;
vi. the situation of the spot immediately after the
incident prior to spot panchanama;"
9. In view of the above, I pass the following order :-
ORDER
i. Criminal Revision Application No.193 of 2022 is allowed and disposed of;
ii. The Advocate for the applicant is permitted to cross examine PW-15 in relation to the issues referred to in ground 'd' of this application as well as qua Exhibits 172 to 185.
(PRAKASH D. NAIK, J.)
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