C P JOSHI Vs. KALYAN SINGH CHOUHAN

JUDGEMENT

(1.) LEARNED counsel for the respondent sought to cross- examine the own witness DW-3 Shantilal Kalal, which has been objected by learned counsel for the petitioner.

(2.) ACCORDING to learned counsel for the respondent, the respondent produced the witness to prove fact in support of his one of the plea and that was with respect to casting of tender vote by one Seema whose name is entered at S.No. 173 in the marked voter list Ex.D/9 and when the petitioner objected to leading evidence with respect to the tendering of tender vote by Seema and this Court disallowed the question from respondent, the respondent closed his examination-in-chief as he called the witness only to prove this particular fact from the witness DW-3 Shantilal Kalal. However, since the petitioner has been permitted to cross-examine the said witness on the issue of fact pleaded by the petitioner by separate order passed today itself and that was with regard to casting of tender vote at polling station No.73 by Bargat Banu in spite of the objection raised by the respondent then in fact the respondent's witness in cross-examination became the witness of the petitioner and whatever witness has stated in the cross-examination made by the petitioner's counsel with respect to the fact relating to casting of tender vote at polling station No.73 is examination-in-chief for the petitioner and, therefore, the evidence which has come on record for the first time in support of the petitioner's case though from the mouth of the respondent's witness, yet the respondent is entitled to cross-examine atleast to the extent of the evidence given by the witness in cross-examination having no relation with the statement given in the examination-in-chief and relating to the case of the petitioner. Learned counsel for the respondent relied upon the division Bench judgment of this Court delivered in the case of Hardeo Singh vs. State of Rajasthan reported in RLW 1997 107.

(3.) IN view of the legal position as discussed above if we look into the facts of the case then it is apparent that in fact the statement of the witness given in the cross-examination in relation to the caste of vote at polling station No. 73 are in relation to the fact pleaded by the petitioner. It is true that the witness was produced by the respondent but since he is a witness and he supposed to tell truth and further more he is a witness for the fact relating to the act done by him in official capacity, therefore, in strict sense, the respondent's witness in peculiar facts, for this evidence cannot be treated to be the witness of the respondent only so as to treat him at par with the respondent himself so as to use his statement as admission of fact against the respondent himself leaving no scope for cross-examination of witness who has deposed for the facts for the first time in cross-examination. IN fact, in peculiar facts and circumstances as are available in the present case, the justice can be done only by permitting the respondents to put the questions which can be put in cross-examination even after cross-examination of respondent's own witness. At this juncture, it may be recapitulated that the Hon'ble Supreme Court in Dahyabhati Chhaganbhai Thakkar's case (supra) clearly held that procedure of examination-in-chief, cross-examination and re-examination as given in routine sequence in the examination of the witness and it has no relevance to the question when a party calling a witness can be permitted to put to him question under Section 154 of the Evidence Act. The Hon'ble Supreme Court also clearly held that the 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. Therefore, also, in whatever name it may be called like putting questions of the nature of cross-examination in re-examination or re-examination is not very much material, but material is that the questions can be put to the witness by the party calling the witness of the nature of the questions, which may be put in cross-examination and that too also after the closure of the cross-examination by the rivalry party.