The credibility of any witness can be established when he is put to cross-examination

Harshit Sharma | Amity Law School, Madhya Pradesh | 14th February 2020

Rekha V/s. State of Uttar Pradesh & Anr. APPLICATION U/S 482 No. – 43580 of 2019

FACTS OF THE CASE

1. The present 482 Cr.P.C. Application No.43580 of 2019 has been filed to quash the orders dated 18.11.2019, 19.11.2019 and 20.11.2019 passed by learned Additional Sessions Judge, Baghpat in S.T. No. 26 of 2017 and S.T. 149 of 2017 (State Vs. Rekha and others), under Sections 147, 148, 149, 302, 307 and 120B IPC, arising out of Case Crime No.271 of 2016, Police Station Binauli, District Baghpat.
2. The police investigated the matter and submitted the charge sheet against the accused persons, namely, Satendra, Smt. Rekha, Manoj, Nirbhay, Anil, Subodh along with Arjun and the trial commenced. The accused Rekha was charged under Section 120B read with Section 302 IPC and she was further charged under Section 120B read with Section 307 IPC and the accused Manoj was also charged under Section 120B read with Section 302 and 307 IPC and all other accused persons were charged under Sections 302, 147, 148, 149, 307 and 120B IPC and session trial commenced and evidence of prosecution witnesses were recorded. After recording the evidence of the prosecution witnesses, an application was given, copy whereof has been annexed on page 25 onwards under Section 216 Cr.P.C. with the prayer to amend the charges against the accused persons, namely, Rekha and Manoj, charged under Sections 147, 148, 149, 302, 307, 120B IPC. This application was moved on 31.7.2019 and the Court allowed this application vide order dated 18.11.2019, and directed that the charge be amended and thereafter the charges against the accused persons, namely, Smt. Rekha and Manoj were amended on 19.11.2019. 
3. After the amendment of the charge against the accused Smt. Rekha and Manoj, an application was moved by the prosecution; which states that the witnesses were present in the Court and they were also ready for cross-examination, but no order was passed by the learned trial Court on the application dated 19.11.2019, moved by the prosecution. Then, again, an application was moved by accused namely Smt. Rekha praying therein that the accused persons may be given an opportunity to cross-examine the prosecution witnesses and the same was rejected.

ISSUES RAISED

1. Whether Ld. Trial Court errored in not allowing the application for re-cross examination of witnesses on account of amended & added charge of offences u/s. 147, 148, 149 and 307 IPC, 1860, thus shaking the credibility of witness and violating the Principles of Natural Justice? 

RULING OF THE COURT/ THE COURT HELD THAT

While directing the Ld. Trial Court to provide an opportunity to cross-examine the witnesses and with a word of caution that the trial Court will not act in haste in deciding this session trial and the trial Court will follow and adhere to the mandatory provisions of law, the Hon’ble High Court observed the following:

1. “…. In order to take care of the said prejudice, it was incumbent upon the prosecution to recall the witnesses, examine them in the context of the charge under Section 302 IPC and other relevant sections and allowed the accused persons to cross-examine the prosecution witnesses in the light of amended charge.” 
2. “In the present case, with the framing of alternative charge, testimony of those witnesses recorded prior to that date could even be taken into consideration and this Court is of the opinion that the provisions of Sections 216 and 217 are mandatory in nature as they not only sub-serve the requirement of principles of natural justice but guarantee an important right which is given to the accused persons to defend themselves appropriately by giving them full opportunity of cross-examination of the witnesses.”
3. “The credibility of any witness can be established only after the said witness is put to cross-examination by the accused persons in connection with the charged offence. In the instant case, no cross-examination of the prosecution witnesses has taken place insofar as concerned charge under Sections 147, 148, 149 and 302 IPC and if the accused persons are not provided an opportunity to cross-examine the prosecution witnesses then the trial will be vitiated.”
4. In the light of the case of Bhimanna v. State of Karnataka the Court held that, “It is principle of natural law that nobody will be condemned unheard and proper and due hearing should be provided to the accused and the cross-examination is one of the facet of due hearing which ought to be provided to every accused to defend himself of the charge being levelled against him.”