ASHWANI KUMAR GARG Vs. STATE (CBI)

JUDGEMENT

(1.) Present petition has been filed under Section 482 Cr.P.C. to assail the impugned order dated 10.4.2018 passed by the Court of Special Judge, CBI, No.3, Jaipur Metropolitan whereby certain questions asked by the counsel for the petitioner to the witness during cross-examination, were disallowed on the ground that the questions cannot be asked to the witness beyond the statement recorded under Section 161 Cr.P.C.

(2.) Briefly sated, the petitioner is facing trial for the charge that during the course of his service he acquired assets beyond his known sources of income. The check period by the investigating agency for acquiring disproportionate assests beyond the known sources of income, is from 17.4.1989 to 28.10.2009. Mother of the petitioner was cited by the CBI as a prosecution witness. Her statement was recorded under Section 161 Cr.P.C. during the course of investigation. Champa Devi, mother of the petitioner, appeared in court as PW.51. Being mother of the accused, she turned hostile to the prosecution. She was confronted with her statement recorded under Section 161 Cr.P.C. Petitioner to prove his defence, had put certain leading questions to her mother to gain advantage. Said questions were disallowed by the trial court on the ground that the counsel for the petitioner cannot ask questions beyond as to what is stated in the statement recorded under Section 161 Cr.P.C. The court further held that the questions asked are not relevant.

(3.) A perusal of the questions reveal that the witness was asked whether her husband, after sale of his share in the property, handed over the amount to the accused. It was further asked whether at the time of marriage of the petitioner, he had received gifts from his in-laws. An accused is entitled to ask a witness even though the witness is a mother, as to what were his sources from which he gathered some income. The questions cannot be overruled on the ground that the same are beyond as to what is stated in the statement under Section 161 Cr.P.C. and are not relevant. To ensure the fair play, the trial Judge ought to have permitted the questions asked to the witness. It is a different matter that while appreciating evidence, the trial court could have taken into consideration that a witness is mother of the accused and having turned hostile to the prosecution, she has purposely deposed in favour of the accused. Therefore, what is in the realm of appreciation of evidence at a later stage i.e. at the time of delivery of judgment cannot be made basis to deny the questions which a defence counsel has a right to ask. Some leeway is to be granted to defence counsel to proceed with his tenor and strategy of cross-examination.