Andhra HC (Pre-Telangana)
Public Prosecutor, High Court Of A.P. vs Thummala Janardhana Rao And Ors. on 6 August, 1998
Equivalent citations: 1998(5)ALD262, 1998(2)ALD(CRI)447, 1998(2)ALT(CRI)479, 1998CRILJ4450
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER
1. This is an applicati6n filed by the Prosecution under Section 482 O.P.C. to set aside the order dated 23.7.98 passed by the learned I Additional Sessions Judge, Machilipatnam in S.C.No.308 of 1995 refusing to permit the Public Prosecutor to cross-examine P.W.6.
2. It appears that PW6 was examined in chief on 16-7-1998 and he could not be cross-examined by the defence inasmuch as the learned Counsel appearing on behalf of the accused expressed his inability to cross-examine the witness on the ground that the accused requested him not to cross-examine the witness. Thereafter, the learned Sessions Judge asked the accused to cross-examine the witness personally. Accused represented that they want to engage senior advocate and they cannot cross-examine the witness. On this, the learned Additional Sessions Judge recorded that since the request of the accused was already refused on 13-7-1998, they have no cross-examination. Thereafter, the respondents-accused filed an application in Crl.M.P.No.478 of 1998 to cross-examine PW6 and accordingly PW6 was summoned for cross-examination on behalf of A1 to A10. During the course of the cross-examination, PW6, inter alia, stated that "I heard that the persons travelled in the jeep discussed to whom they have to refer as accused. But, I do not know the details. We went to Machilipatnam from Ghantasala via Ramanagaram." It may be stated here that PW6 is the person who is alleged to have driven the vehicle and carried the injured including the deceased to Ghantasala Police Station and from there to General Hospital, Machilipatnam in Jeep bearing No. APK 6908. It is at this stage, the learned Additional Public Prosecutor in the trial Court requested the Court to permit him to cross-examine the witness after declaring the witness hostile. The learned Additional Sessions Judge then requested the Addl.P.P. to show the circumstances for treating the witness as hostile. The learned Addl. Public Prosecutor contended before the learned Additional Sessions Judge that the above quoted two sentences elided in the cross-examination of PW6 are against the prosecution and those sentences would completely destroy the prosecution case and for that reason, he wanted to cross-examine the witness after declaring him as hostile. It is also contended by the Additional Public Prosecutor before the Court below that those two sentences and also the sentence to the effect that 'there were police at Kodali centre controlling the traffic due to the Pushkarams' would completely destroy the prosecution case and under those circumstances, the witness is required to be declared as hostile and be subjected to cross-examination by the prosecution. The learned Additional Sessions Judge after an elaborate consideration of the matter came to the conclusion that no permission need be granted to declare the witness as hostile and permit the prosecution to cross-examine him, merely because a witness in an un-guarded moment speaks truth which may not suit the prosecution or support its case. The learned Additional Sessions Judge accordingly held that P.W.6 in an un-guarded moment gave true version as to what had transpired in the jeep and also about the police controlling the traffic at Kodali centre due to Pushkarams. The learned Judge further held that may be those two sentences are not relishable to the prosecution, but the witness cannot be allowed to be cross-examined by the prosecution. The learned Additional Sessions Judge also held that the Court before permitting a party to cross-examine its own witness must be satisfied that the evidence of that witness in the cross-examination is quite contra to the material statement made by him earlier or that his statement is contra to a material fact which is already on record. The learned Judge finally came to the conclusion that neither of the circumstances appear from the evidence of P.W.6 and accordingly refused permission to cross-examine PW6 by the prosecution.
3. Sri O. Kailashnath Reddy, the learned Additional Public Prosecutor contends before me that the present version ofPW6 during the cross-examination, made on behalf of A1 to A10 would totally destroy the prosecution case and the whole edifice on which the prosecution story rests could get dismantled. It is under those circumstances, learned Additional Public Prosecutor contends that PW6 is required to be declared as hostile and should be subjected to cross-examination by the prosecution.
4. Sri C. Padmanabha Reddy, the learned Senior Counsel appearing on behalf of the respondents submitted that each and every statement made by a witness which may in a way go contra to what is stated by him in examination-in-chief or cross-examination itself would not be enough to declare the witness as hostile. The learned senior Counsel would urge that the whole purpose of cross-examination is to extract the truth and made the witness to speak the truth in an un-guarded moment. Learned senior Counsel would further urge that it is not a case where PW6 totally gave a go-bye as to what he has stated in his statement recorded by the police under Section 161 Cr.PC or in examination-in-chief." It may be required to have a look at the statement made by PW6 in detail.
5. It is stated in the evidence of PW6 that on 14-9-1992 relations of one Ram Gopal requested him to take them to Srikakulam for a holy bath during pushkarams. PW6 who is the jeep driver and a licence holder accordingly took them in jeep bearing No. APK 6908 belonging to one Sri Vemuri Rama Gopal of Ghantasala. In return journey, they reached Kodali centre beyond 10.00 a.m. and at Kodali centre one Krishnarao and some others stopped the jeep and they requested PW6 to take the injured Gopala Rao and others in the Jeep to Ghantasala Police Station. It is also stated by PW6 in his evidence that "Then the persons who are in the jeep were dropped at Kodali centre and the injured were placed in the Jeep and I took them to Ghantasala Police Station along with the injured, Krishna Rao, Murali and another also boarded the bits". It is further stated by him, "At Ghantasala Police Station, Krishna Rao went inside the Police Station and came, out with head constable and then they informed that we should go to Machilipatnam as the condition of Gopala Rao was serious. Then H.C. joined us and we all went in the same jeep to Machilipatnam. We came to General Hospital, Machilipatnam. They all went inside the hospital and half an hour thereafter I was informed that Gopala Rao is dead. Then I came back to Ghantasala after informing Krishna Rao in the same jeep. On the next day police examined me". It is thus clear that in the examination-in-chief, PW6 virtually and faithfully reproduced what had been stated by him before the police. He had not given any go-bye or made any statement which could be said to be detrimental to the interest of the prosecution case.
6. However, during the cross-examination by the Counsel for Al to A10, while narrating the wry same story, PW6 stated that "All the injured were in the back portion of the jeep and they were talking with each other. I heard that the persons travelled in the jeep discussed to whom they have to refer as accused. But, I do not know the details. We went to Machilipatnam from Ghantasala via Ramanagaram". According to the prosecution, these are the sentences in the version made by PW6 that would be detrimental to the case of the prosecution. According to the learned Additional Public Prosecutor, PW6 has changed his version on 22-7-1998 when he was cross-examined after about six days from the date of examination-in-chief. The learned Additional Public Prosecutor even went to the extent of submitting that evidently PW6 has been won over by the defence. Another offending portion of evidence elicited in the cross-examination of PW6, according to the learned Additional Public Prosecutor , is the statement made byPW6 viz., "I left the Govt. Hospital at 10.00p.m. Police were present at Kodali centre controlling the traffic due to pushkarams".
7. As to under what circumstances a party calling its own witnesses may claim permission of the Court to cross-examine them and the Scope of Section 154 of the Indian Evidence Act is not res integra. The Apex Court in R.K. Dey v. State of Orissa, AIR 1977 SC 170 held thus:
"10. Before proceeding further we might like to state the law on the subject at this stage. Section 154 of the Evidence Act is the only provision under which a party calling its own witnesses may claim permission of the Court to cross-examine them. The Section runs 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 section confers a judicial discretion on the Court to permit cross-examination and does not contain any conditions of principles which may govern the excercise of such discretion. It is, however, well settled that the discretion must be judiciously and properly exercised in the interests of justice. The law on the subject is well settled that a party will not normally be allowed to cross-examine its own witness and declare the same 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 an earlier authority or where the Court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth. One of the glaring instances in which the Court sustained the order of the Court allowing cross-examination was where the witness resiles from a very material statement regarding the manner in which the accused committed the offence. In Dahyabhair v. State of Gujarat, this Court made the following observations:
"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 this power to the stage of examination-in-chief is to make it ineffective in practice. A clever witness in his examination-in-chief faithfully conforms to what he stated earlier in the police or in the committing Court, but to the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief. If his design is obvious, we do not see why the Court cannot, during the course of his cross-
examination, permit the person calling him as a witness to put questions to him which might be put in cross-examination by the ad verse party."
'' Broadly stated, the position in the present case is that the witnesses in their statements before the police attributed a clear intention to the accused to commit murder but before the Court they stated that the accused was insane and, therefore, he committed the murder."
A perusal of the above observations will clearly indicate that the permission to cross-examine was upheld by this Court because the witnesses had catagorically stated before the police that the accused had committed the murder but resiled from that statement and made out a new case in evidence before the Court that the accused was insane. Thus, it is clear that before a witness can be declared hostile and the party examining the witness is allowed to cross-examine him, there must be some material to show that the witness is not speaking the truth or has exhibited an element of hostility to the party for whom he is deposing. Merely because a witness in an unguarded moment speaks the truth which may not suit the prosecution or which may be favourable to the accused, the discretion to allow the party concerned to cross-examine its own witnesses cannot be allowed. In other words a witness should be regarded as adverse and liable to be cross-examined by the party calling him only when the Court is satisfied that the witness bears hostile animus against the party for whom he is deposing or that he does not appear to be willing to tell the truth. In order to ascertain the intention of the witness or his conduct, the Judge concerned may look into the statements made by the witness before the Investigating Officer or the previous authorities to find out as to whether or not there is any indication of the witness making a statement inconsistent on a most material point with the one which he gave before the previous authorities. The Court must, however, distinguish between a statement made by the witness by way of an unfriendly act and one which lets out the truth without any hostile intention.
11. It may be rather difficult to lay down a rule of universal application as to when and in what circumstances the Court will be entitled to exercise its discretion under Section 154 of the Evidence Act and the matter will largely depend on the facts and circumstances of each case and on the satisfaction of the Court on the basis of those circumstances. Broadly, however, this much is clear that the contingency of cross-examining the witness by the party calling him is an extraodinary phenomenon and permission should be given only in special cases. It seems to us that before a Court exercises discretion in declaring a witness hostile, there must be some material to show that the witness has gone back on his earlier statement or is not speaking the truth or has exhibited an element of hostility or has changed sides and transferred his loyalty to the adversary. Further more, it is not merely on the basis of a small or insignificant omission that the witness may have made before the earlier authorities that the party calling the witness can ask the Court to exercise its discretion. The Court, before permitting the party calling the witness to cross-examine him, must scan and weigh the circumstances properly and should not exercise its discretion in a casual or routine manner"
8. The Supreme Court further held that "It is also clearly well settled that the mere tact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him as unreliable witness so as to exclude his evidence from consideration altogether".
9. This Court in A.P. Rao v. State through Public Prosecutor, 1989 APLJ (Crl.) 378 observed that:
"On a reading of the language that has been introduced in Sections 154 and 155 of the Indian Evidence Act it can be said that the grant of leave to cross-examine their own witnesses at any stage has been left completely to the discretion of the trial Court, and such exercise is not fettered by or dependant upon the hostility or adverseness of the witness. Even after the cross-examination is over and even in the last sentence if any statement is made inconsistently or an improved statement or a statement which destroys the prosecution case, the prosecution which has called the witness is entitled to ask the Court and the Court is competent to grant permission and such permission cannot be treated as an act on the part of the Sessions Judge that he has made up his mind or he has biased towards one party or the other''.
10. Thus, it is clear that the Court is endowed with power and jurisdiction to grant permission to a party to cross-examine its own witnesses and such permission can be granted at any stage of the proceedings. But the said discretion is required to be exercised in a judicious manner. But it is difficult to lay down a rule of universal application as to when and in what circumstances the Court will be entitled to exercise its discretion. The learned Sessions Judge would have to take the relevant factors into consideration either for granting or refusing the permission to cross-examine its own witness by a party. Further, it is not as if the learned Sessions Judge could dispose of the request made by the party concerned in a casual and mechanical manner.
11. It is also clear that it is not as if such permission could be granted by the learned Sessions Judge merely because a witness says something which is not stated by him in the examination-in-chief. It is not as if a witness is expected to state and repeat the very same version in the cross-examination and if that is so, the whole purpose of cross-examination would be lost. It is not as if the Court would grant permission to a parry to examine its own witness on the simple ground that there is some deviation either in examination-in-chief or in the cross-examination which may have an adverse bearing on the story of the prosecution. Permission may be granted by the Court only if it satisfies that the witness has exhibited an element of hostility to the party for whom he or she is deposing.
12. Viewed in the back ground, the statement made by PW6 referred to above, in my considered opinion, would not be a ground to the prosecution to declare him hostile and permit them to cross-examine him. The whole evidence of PW6 so for recorded would not make out any such case. It is not as if PW6 gave a total go-bye as to what he had stated in the examination-in-chief, nor that he has exhibited an element of hostility to the party claiming as witness so that permission may be granted to cross-examine him. May be under the intensity of cross-examination, PW 6 blurted out something which may not be convenient to the prosecution. But, that itself would not be a ground nor constitute any element of hostility to the prosecution for whom he is deposing so as to permit the prosecution to examine its own witness. If that is so, the very meaning and purpose of 'cross-examination' to elicit truth from a witness and to test the veracity of the witness would be lost. The Court would not place such an interpretation of Section 154 of the Evidence Act.
13. However, as rightly pointed out by the learned Public Prosecutor, the learned Sessions Judge ought not to have observed that "PW6 in an un-guarded moment gave true version as to what happened in the jeep and about the police controlling the traffic at Kodali centre due to Pushkarams." The observation made by the learned Sessions Judge is required to be understood in the context and it does not mean that the learned Sessions Judge had expressed any opinion with regard to the evidence of PW6. What would be-the effect of the said controversial statement made by PW6 and in what manner his evidence is required to be assessed and appreciated by the learned Sessions Judge is left to the discretion of the learned Sessions Judge. It is needless to clarify that the observations made by the learned Sessions Judge to the effect that PW6 blurted out the truth may have to be ignored for the present. The learned Sessions Judge surely would appreciate the evidence on record including the evidence of PW6 on its own merits and in accordance with law and as per the settled principles.
14. For the aforesaid reasons, I do not find any merit in this application and the same is accordingly dismissed.