IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.02.2010 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM Crl.O.P.No.33216 of 2007 and M.P.No.1 of 2007 1.Kandasamy 2.Duraisamy 3.Murugesan 4.Mani 5.Suresh 6.Raja …. Petitioners/ Accused Versus 1. State represented by The Inspector of Police Steel Plant Police Station, Salem. (Crime No.22 of 2005) 2. M.Dhanasekaran … Respondents/ Complainant (Impleaded the 2nd respondent as per Order dated 29.01.2008 in M.P.No.1/08) Criminal Original Petition filed under section 482 of Criminal Procedure Code to call for the records relating the order dated 10.10.2007 passed in S.C.No.252 of 2006 on the file of the First Additional District and Sessions Court, Salem and quash the same. For Petitioners : Mr.K.Govi Ganesan For Respondent 1 : Mr.N.Kumaran Government Advocate (Crl.Side) For Respondent 2 : Mr.D.Shivakumaran https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioners herein are facing trial in S.C.No.252 of 2006 on the file of the First Additional District and Sessions Court, Salem. They have been charged for offences under Sections 148, 149, 324 and 302 IPC r/w. Section 109 I.P.C. 2.The case relates to the death of one Ranganayagi on 14.08.2005 at about 9.45 hours. In the course of trial, one Dr.Uma Manivannan was examined as PW-11. According to the petitioners, such witness deposed in keeping with what she has stated in the course of investigation during her chief examination and while she was cross- examined, she had given certain answers that would be favourable to the accused. At such stage, the learned Public Prosecutor before the trial Court has sought that such witness be treated as hostile which was objected by the learned counsel for the petitioners. However, the trial Court was pleased to treat such witness as hostile. 3.The learned counsel for the petitioners urges that when the evidence of the witness in chief examination has been in keeping with Section 161 Cr.P.C. statement, then the lower Court fell into an error in permitting the prosecution to treat such witness as hostile merely because some answers in favour of the accused were elicited from her in the course of cross-examination. 4.The learned counsel for the petitioners places reliance on a Division Bench judgment of this Court in Mohandoss and 3 others v. State, rep. by Inspector of Police, Valangiman Circle 2004-2-L.W. (Crl.) 922 wherein this Court had observed as follows: "13.It is, no doubt, true that P.W.7 was treated hostile and we find no reason as to why the trial Court gave permission to the prosecution to treat him hostile, since he did not detract from his statement given and recorded under Section 161 Cr.P.C. by the investigating officer. After he was treated hostile, a question was put by the Public Prosecutor whether he questioned the persons present at the scene of occurrence as to how the occurrence had taken place and that they refused to give any details to him. P.W.7 has admitted that he said so to the investigating officer. This was the only question that was put to P.W.7, after he was treated hostile and he was not confronted with any other statement made by him at an earlier point of time, when he was examined during the course of investigation. In the interest of justice, we also perused the original statement of the witness, P.W.7. The said statement given by him and the evidence given by him in chief-examination are one and the same and we are at a loss to understand as to how and why the Presiding Officer gave permission to the prosecution to treat https://hcservices.ecourts.gov.in/hcservices/ him as hostile and we are also unable to understand as to why the prosecution wanted this witness to be treated as hostile." 5.The learned counsel also relied on a decision reported in S.Murugesan and 2 others v. S.Pethaperumal and 2 others 1999 (I) CTC 458 wherein it has been held as follows: "6.To appreciate the case on hand, it is necessary to appreciate Section 154 of the Indian Evidence Act, which reads as follows:- "The court may, in its discretion, permit the person who calls a witness put any questions to him which might be put in cross-examination by the adverse party". 7.From a reading of the abovesaid provision, it is clear that the discretion is conferred upon the Court to permit cross-examination of his witness, and it does not contain any conditions or guidelines which may govern exercise of such discretion. But, it is always expected that the courts have to exercise such discretion judicially and properly in the interest of justice. A party will not normally be allowed to cross-examine his own witness and declare the same hostile unless the Court is satisfied that the statement of witness exhibits an element of hostility or that he is resiled from a material statement 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. 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 before a witness can be declared hostile and the party examining the witness is allowing to cross examine him. Merely because the witness speaks about the truth which may not suit the party on whose behalf he is deposing the same and favourable to the other side, the discretion to allow the party concerned to cross-examine its own witness cannot be exercised." 6.I have heard the learned Government Advocate (Crl.Side) and the learned counsel appearing for the 2nd respondent on the submissions made by the learned counsel for the petitioners. 7.A perusal of order of the lower Court reveals that it found material variance between the Section 161 Cr.P.C. statement of the witness and the deposition in Court. Touching upon the discrepancy in recording the time of arrival of injured/deceased at hospital as also finding of bandages on the head of the injured/deceased at the time of admission, the lower Court directed that the witness be treated as hostile. Having so directed, the lower Court adjourned the matter to a further date towards cross-examination of the witness by the prosecution. It is at such stage that the petitioners have https://hcservices.ecourts.gov.in/hcservices/ approached this Court by way of the present Criminal Original Petition. 8.On consideration of the rival submissions, I find that as against the Division Bench judgment relied upon by the petitioners wherein it has been specifically found that no reasons were accorded by the lower Court for treating the witness hostile, in the instant case, the lower Court has accorded reasons. Further, the decision of the Division Bench was in an appeal which upon consideration of all relevant materials including the aspect of having treated the witness hostile, the Division Bench was pleased to allow. In the instant case, the trial Court has found it necessary and just to treat the witness as hostile. That is a decision which the lower Court was well entitled to come to. This Court will have an opportunity to consider the propriety or otherwise thereof, should the matter, in the event of conviction be before this Court by way of appeal. It would be improper for this Court to interfere at this stage. 9.The observation of the learned single Judge in decision reported in S.Murugesan and 2 others v. S.Pethaperumal and 2 others 1999 (I) CTC 458 really do not tilt the scales either way. The learned single Judge has in effect observed that where the Court is satisfied that the statement of witness exhibits an element of hostility or that he has resiled from a material statement or where the court is satisfied that the witness is not speaking the truth, it may treat a witness as hostile at the behest of the party which called him. In the instant case, as earlier observed, the lower Court has pointed out discrepancies between the Section 161 Cr.P.C statement of the witness and his evidence in the box. 10.The law on the subject stands laid down in decision of the Honourable Apex Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat 1964 (2) Crl.L.J. as follows: "Section 137, of the Evidence Act gives only the three stages, in the examination of a witness, namely examination- in-chief, cross-examination and re-examination. This is a routine sequence in the examination of a witness. This has no relevance to the question when a party calling a witness can be permitted to put to him questions under S.154 of the Evidence Act: that is governed by the provisions of S.154 of the said Act, which confers a discretionary power on the court to permit a person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. 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 https://hcservices.ecourts.gov.in/hcservices/ make it ineffective in practice. A clever witness in his examination-in-chief faithfully conforms to what he stated earlier to the police or in the committing court, but in 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, (sic-re- examination) permit the person calling him as a witness to put questions to him which might be put in cross-examination by the adverse party. To confine the operation of S.154 of the Evidence Act to a particular stage in the examination of a witness is to read words in the section which are not there. We cannot also agree with the High Court that if a party calling a witness is permitted to put such questions to the witness after he has been cross-examined by the adverse party, the adverse party will not have any opportunity to further cross-examine the witness on the answers elicited by putting such questions. In such an event the court certainly, in exercise of its discretion, will permit the adverse party to cross-examine the witness on the answers elicited by such questions. The court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examination-in-chief." 11.The contention on behalf of the petitioners stands covered by the decision of the Honourable Apex Court above referred and would stand rejected for the reasons stated therein. 12.For the above reasons, the Criminal Original Petition shall stand dismissed. Consequently, the connected miscellaneous petition is closed. 13.Office is directed to forthwith return the records to the lower Court and the trial Court is directed to dispose of the case expeditiously. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gm https://hcservices.ecourts.gov.in/hcservices/ To 1. State rep. by The Inspector of Police Steel Plant Police Station, Salem. 2. The Ist Additional District and Sessions Court, Salem 3. The Criminal Section, High Court, Madras-104 4. The Public Prosecutor, High court, Madras-104. + 1 cc to Mr.D.Shivakumaran, Advocate, SR 5665 + 1 cc to Mr.K.Govi Ganesan, Advocate, SR 5854 Crl.O.P.No.33216 of 2007 and M.P.No.1 of 2007 GS (CO) RH (15.2.10) https://hcservices.ecourts.gov.in/hcservices/