STATE OF GUJARAT Vs. PIRUBHAI JIVABHAI MISTRY

JUDGEMENT

(1.) "Whether and when the panch-witness having supported the prosecution case in his examination-in-chief and ultimately during the crossexamination started giving evidence prejudicial, rather destructive to the prosecution, then under the circumstances, learned trial Judge was justified in not permitting the learned P.P. to re-examine him and/or to put him leading question/s in the nature of cross-examination merely because moment and at the time the witness started deviating bidding good-bye to the prosecution case, adding or substracting from the original statement, the learned P.P. failed to object and make request to reexamine or cross-examine as the case may be ?? This in short, precisely is the question which this Court is called upon to answer, arising in the context and background of the facts-situation of the case narrated hereunder.

(2.) To state few relevant facts - Pirubhai Jivabhai Mistry with others came to be tried for the alleged offences punishable under Secs. 307, 324, 147, 148, 149 and 294 of the Indian Penal Code read with Sec. 135 of the Bombay Police Act, 1951 by the learned Addl. Sessions Case No. 140 of 1992. During the course of trial, the prosecution examined several witnesses, one of them was PW-9 Nazarali Gulammiya Saiyed who appeared as a panch witness for scene of offence. It appears from the examination-in-chief that he supported the prosecution case but then during his course of cross-examination by the learned Advocate appearing for the accused, he has shown the tendency of blowing hot and cold, i.e. to say giving an evidence in a manner prejudicial to the prosecution which ultimately favoured the accused. In this view of the matter, the learned P.P. appearing for the State immediately after the cross-examination was over, on the very same day, submitted an application Exh. 45 inter alia praying for re-examination of PW-9 in order to put the leading questions in nature of cross-examination to him. This application Exh. 45 of the learned P.P. was summarily dismissed by the trial Court on 14-6-1996 on the very day on three grounds, viz., Firstly, it was the duty of learned P. P. to immediately object to the legality and the admissibility of the questions put by the learned defence Counsel to PW-9 in the cross-examination which was not done. Secondly, after the completion of recording entire evidence including cross-examination, to ask for declaring a witness hostile was not only improper but the same was waste of the precious time of the Court, and thirdly, the re-examination of a witness can be permitted only in those cases wherein in-between the examination-in-chief and cross-examination, there is some ambiguity which is required to be clarified. This was precisely not the case here. It is under these circumstances that the State has preferred this Criminal Revision Application challenging the impugned order passed by the learned Addl. Sessions Judge, praying for (i) quashing and setting aside the same, and (ii) permitting the learned Public Prosecutor re-examine PW-9 and to put leading questions in nature of crossexamination to PW-9 or declare him hostile as the case may be.

(3.) Heard learned A.P.P. Mr. D. N. Patel and Mr. B. N. Raval, learned Advocate for the respondent-accused.