IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 Crl.MC.No. 901 of 2009() ------------------------ (AGAINST THE ORDER DATED 21.02.2009 IN Crl.M.P. No.418/09 IN S.C. No. 66/08 OF THE SESSIONS COURT, KOTTAYAM) PETITIONERS: --------------- 1. RAJAN, S/O.BHASKARAN, SIVASAKTHIYIL (VANDANNOOR HOUSE) PANACHIPARA KARA, STADIUM BHAGAM, POONJAR NADUBHAGAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. 2. DILEEP S/O.DIVAKARAN, THAZHATHUVALLIATHU, ALANADU KARA, ALANADU BHAGAM, BHARANANGANAM VILLAGE, MEENACHIL TALUK. BY ADV. MR.P.BABU KUMAR RESPONDENT: --------------- STATE OF KERALA, REP.BY DIRECTOR PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR P.A. SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- CRL.M.C.No. 901 OF 2009 --------------------------------- Dated this the 6th day of March, 2009 O R D E R This petition is filed to set aside the order in Crl.M.P. 418/09 in S.C 66/2008. It was an application to recall PW4 who had turned against the prosecution. The court below held that sufficient opportunity was given to cross examine, but he was not cross examined and the purpose is only to protract the matter and therefore dismissed the application. 2. PW4 is the land owner of the building. The case pertains to sale of liquor on a Good Friday on which date sale of liquor is prohibited. I find from the evidence tendered during the course of chief examination, the court interfered and put a question and chief examination further continued and witness did not support the prosecution. Thereafter court permitted to put questions under Section 154 of the Evidence Act. Unfortunately the counsel for the accused did not cross examine this witness. Even when a witness turns hostile it is a settled position of law that the entire evidence need not have to be thrown out and there is always the Crl.M.C.No. 901/2009 -2- right for the court to take acceptable portion. So when such is the position of law it is really necessary for an accused in a case to challenge the evidence. The learned counsel for the petitioner submits before me that as the counsel was in another court, it was represented as no cross. Whatever it may be, on account of a chance being lost for cross examining the accused need not suffer. Therefore interest of justice requires an opportunity to be given to cross examine. 3. Therefore I set aside the order under challenge and permit the petitioner herein to cross examine PW4. Permission is granted to the prosecution to re-examine and if any new matter is put in the cross examination, further examination can be done by way of re-examination. With these observations, the Crl.M.C is allowed. M.N. KRISHNAN, JUDGE vkm