A P RAO Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The subtle and the only point involved in this revision filed bythe accused in Sessions Case No. 139 of 1985 on the file of the Metropolitan Sessions Judge, Hyderabad, is whether the learned Sessions Judge was not justified in allowing the prosecution to re-examne P. W-5 on the points on which he has not stated anything either before the police or in the examination-in-chief.

(2.) The facts that led the learned Sessions Judge in permitting theprosecution to re-examine P, W-5 are as follows :

(3.) P.W-1 is the wife of A-1. According to P.W-1, after the marriageA-1 ill-treated her and harassed her and finally when she came out of the house of A-1 she was kidnapped by the accused and was wrongfully confined and on 6-2-1985 she was taken to the Secunderabad Boat's Club and from there she escaped from the clutches of A-l after requesting P. W-5 to get her an auto-rikshaw. According to her, she asked P.W-5 to get an auto-rikshaw without the knowledge of A-1 and she went away in the auto-rikshaw without A-1 noticing it. To prove that fact, the prosecution examined P. W-5. During the course of the cross-examination by the counsel for the defence, P. W-5 stated that A-l was present when P.W-1 went in the auto-rikshaw and she also gave him tip of Rs. 5/- after taking money from A-1. Thus the evidence of P.W-5 in the cross-examination shows that P. W-1 left the Boat's Club with the knowledge of A-l and after intimating him. This version of P. W-5 obviously, as found by the learned Metropolitan Sessions Judge, destroys the case of the prosecution that P.W-1 escaped from the Boat's Club without the knowledge of A-1. Therefore, the Public Prosecutor wants to put questions to P. W-5 which might be put in the cross-examination by the adverse party. The learned Sessions Judge in the impugned order found that P.W-5 did not tell the police in the statement under Sec. 161 Cr. P. C. that P. W-l took Rs. 5/- from A-l in order to give him tip while leaving the Boat's Club. He also observed that the statement of P. W-5 under Section 161 Cr. P. C. does not show that P. W-l left the Secunderabad Boat's Club with the knowledge of A-1 and it is only in the cross-examination by the learned counsel for the accused that P.W-5 introduced this new fact which is adverse to the case of the prosecution. Therefore, there is an element of hostility to the prosecution and, therefore, he is of the opinion that it is just and proper to permit the prosecution to re-examine P.W-5 and put such questions which might be put in the cross-examination by the adverse party.