Dismissed

The State Rep. by Deputy v. Tr. K.Ponmudi @ Deivasigamani

Madras HC9 Mar 2018CRL OP/2918/2016

Case brief

AI extract

What is this about?

In disproportionate assets corruption case, State sought to treat witness PW.8 as hostile after cross-examination due to new contradictory statements. This Court held mere variations do not equal hostility and declined to interfere with Trial Court’s refusal, leaving prosecution discretion to disown evidence. Petition dismissed.

What did the court decide?

Petition dismissed; Trial Court directed to proceed with trial and assess witness credibility at final stage.

The State Rep. by Deputy Vs Tr. K.Ponmudi @… — Civil Procedure and Limitation | Madras HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated : 09.03.2018

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CORAM

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THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

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Crl.O.P.No.2918 of 2016

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The State represented by Deputy Superintendent of Police, Vigilance & Anti-Corruption Department Villupuram. ... Petitioner Vs.

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1 Tr.K.Ponmudi @ Deivasigamani S/o.Kandaswamy, Formerly Minister for Transport of Tamilnadu, Villupuram Assembly Constituency, Villupuram District.

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2 Tmt.Visalakshi W/o.K.Ponmudi @ Deivasigamani ... Respondents

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Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C. praying to set aside the order passed by the Special Court for the Cases under Prevention of Corruption Act Cases at Villupuram in Special Case No.2 of 2015, dated 12.08.2015, permit the prosecution to treat PW.8 as hostile and permit the prosecution to cross examine him.

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For Petitioner : Mr. K.Prabakar Addl.Public Prosecutor For Respondents : Mr.R.Shanmugasundaram senior counsel for A.Gopinath

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ORDER

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This is a case where one of the prosecution witness, also a relative to the accused in the disproportionate asset case has sailed with the prosecution in the chief-examination, however, in the cross-examination, he has thrown details regarding the jewels sold by his mother, who happened to be the mother of one of the accused. Since the prosecution has thought that the witness clever enough to sail with the prosecution in chiefexamination, had turned hostile to the prosecution in the cross- examination. Hence, he has to be treated as hostile witness under Section 154 of the Indian Evidence Act and allowed

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to cross-examine him.

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2 When the learned Public Prosecutor before the Trial Court made a request to treat the witness as hostile, the Trial Court after perusing the previous statements of the witness recorded under Section 161 of Cr.P.C found that there is no material to treat the witness as hostile. The reasoning for declining the request is recorded in the deposition of the witness itself.

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3 The State which has preferred this petition challenging the order of the Trial Court would submit that the witness PW.8Swaminathan, in its previous statements recorded under Section 161 Cr.P.C., had not whispered about the jewels held by his mother. In fact, in his further statement, he has categorically state that he does not know where his mother sold the gold jewels worth several lakhs. Whereas in the cross-examination, he has stated that at the request of his mother, he sold 80 sovereign of jewels for Rs.2,40,000/-and gave the money to her. Again he sold 110 sovereign of jewels for Rs.3,50,000/- and gave to her. Since, this portion which has been elucidated during cross-examination is not only a new fact but also contradict to the previous statements of the witness.

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4 The learned Additional Public Prosecutor submitted that the Trial Court has not considered the portion of contradiction which has been deposed by this witness detrimental to the prosecution. The hostility of the witness well exposed in crossexamination hence, the witness ought to treated as hostile. Further, the learned Additional Public Prosecutor submitted that in the chief-examination also, PW.8 has not stated about the details of the jewels. Except mentioning to the investigating officer that his mother sold her jewels for few thousand rupees, he has said that he does not know to whom she sold and for how much she sold. Whereas in the cross-examination, contrary to his own version in the chief-examination, the witness has specified the quantum of jewels, value of jewels and has also deposed that he sold the jewels on behalf of his mother. This clearly establishes hostility and therefore, the order of the Trial Court declining the request to treat the witness as hostile has to be set aside.

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5 The learned Senior Counsel appearing for the petitioner would submit that there is difference between hostility and unfavorable statement of the witness. The facts elucidated during cross-examination of the prosecution witness may be unfavourable to the prosecution, but, it does not fall within the category of hostility. After allowing the witness to be cross-examined by the accused, requested to treat him as hostile cannot be entertained for the sake of asking.

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6 The Trial Court has come to the right conclusion after comparing the previous statement and declined the request of the prosecution which is in consonance of law and judgments of Apex Court. Hence, there is no circumstances to interfere the order of the Trial Court.

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7 Both the counsels appearing for the respondents and the learned Additional Public Prosecutor had assisted this Court with judgments rendered by the Supreme Court and other High Courts relevant to the issue.

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8 Section 154 of Indian Evidence Act, enables a person to question his own witness. Section 154 reads thus: Question by party to his own witness

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“ The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.”

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9 The difference between cross-examination and chiefexamination is that leading questions cannot be put in chiefexamination, whereas, in cross-examination it is permissible. Now, when we consider Section 154, it is very clear that it is the discretion of the Court to permit the person to crossexamine its own witness and the judgment of the Hon'ble Supreme Court and other High Courts has laid down certain criteria, particularly, when a witness can be treated as hostile even after cross-examination.

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10 In Dahyabhai Chhaganbhai Thakker Vs. State of Gujarat [1964 (7) SCR 361], the Hon'ble Supreme Court has observed as under:

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“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 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, permit the person calling him as a witness to put questions to him which might be put in cross-examination by the adverse party.

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Broadly stated, the position in the present case is that the witnesses in their statements before the police attributed a clear intention to the accused to commit murder, but before the Court they stated that the accused was insane and, therefore, he committed the murder.”

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Referring this judgment, the Supreme Court in Sri Rabindra Kumar Vs. State of Orissa reported in [1976 (4) SCC 233 has observed that:

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“Merely because a witness in an unguarded moment speaks the truth which may not suit the prosecution or which may be favourable to the accused, the discretion to allow the party concerned to cross-examine its own witnesses cannot be allowed. In other words a witness should be regarded as adverse and liable to be cross-examined by the party calling him only when the Court is satisfied that the witness bears hostile animus against the party for whom he is deposing or that he does not appear to be willing to tell the truth. In order to ascertain the intention of the witness or his conduct, the judge concerned may look into the statements made by the witness before the Investigating Officer or the previous authorities to find out as to whether or not there is any indication of the witness making a statement inconsistent on a most material point with the one which he gave before the previous authorities. The Court must, however, distinguish between a statement made by the witness by way of an unfriendly act and one which lets out the truth without any hostile intention.”

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the Hon'ble Supreme Court has also added that it is rather difficult to laid down any hard and fast Rule.

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11 When and under what circumstances the Court to exercise its discretion under Section 154 of Evidence Act, depends on the facts of each case. The satisfaction of the Court depends on material which show that the witness had gone back on its earlier statement and he is not speaking the truth.

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12 In this case, the Trial Court after perusing the previous statement has found that the deposition of the witness in the cross-examination does not reflects any hostility. However, as the learned Additional Public Prosecutor pointed out this Court could find that there are contradictions in his Section 161 Cr.P.C. statement and chief -examination vis-a-vis cross-examination, where PW.8 has thrown new facts which were

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not whispered by him during his previous statement or chiefexamination. This variations is for the Trial Court to appreciate while passing of the judgment and this variations or contradictions, per se will not entitle the prosecution to treat the witness as hostile.

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13 The Hon'ble Supreme Court in the decision cited supra while permitting the witness to be declared as hostile after being cross-examination, has also observed that the prosecution could even avoid requesting the Court for permission to crossexamine the witness under Section 154 of the Evidence Act and disown the witness or the Court may, if requested, permit the prosecution to cross-examine its own witness treating him to hostile. In any event, the evidence of such witness cannot be taken as gospel truth. The Trial Court has to assess the evidenciary value of such witnesses at the end of the trial. Whatever evidence let in by the witness always gains significance based on its reliability and corroboration.

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14 In the said circumstances, the Trial Court while declining the prosecution, its permission to treat the witness as hostile, has not fore closured the option of re-examination of the said witness. Furthermore, even now the prosecution can exercise the option given by the trial Court to recall PW.8 and re-examine the witness, if it is advised to do so. Even otherwise it is not the end of the prosecution case. As pointed out earlier decision regarding admissibility and reliability of the said witness will be considered by the Court at the end of the trial.

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15 In State of Bihar Vs. Laloo Prasad @ Laloo prasad yadav and another reported in [(2002) 9 SCC 626]. The Hon'ble Supreme Court has held as follows:

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“Here if the Public Prosecutor had sought permission at the end of the chief-examination itself the trial court would have no good reason for declining the permission sought for. But the Public Prosecutor did not do so at that stage. That is precisely the reason why the trial Judge declined to exervise his discretion when the permission was sought for after the crossexamination was over. The witness has said only the details in cross-examination regarding the matter has said in the chief examination itself.”

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After discussing the merits of the case and legal position, the Hon'ble Supreme Court held as follows:-

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“In the above situation we are unable to hold that the trial Judge has gone wholly wrong in declining to exercise the discretion envisaged under Section 154 of the Evidence Act in favour of the

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appellant. Be that as it may, if the Public Prosecutor is not prepared to own the testimony of the witness examined by him he can give expression of it in different forms. One of such forms is the one envisaged in Section 154 of the Evidence Act. The very fact that he sought permission of the court soon after the end of the cross-examination was enough to indicate his resolve not to own all what the witness said in his evidence. It is again open to the Public Prosecutor to tell the court during final consideration that he is not inclined to own the evidence of any particular witness in spite of the fact the said witness was examined on his side. When such options are available to a Public Prosecutor, it is not a useful exercise for this Court to consider whether the witness shall again be called back for the purpose of putting crossquestions to him.”

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16 For the very same reason stated above, this Court is not inclined to entertain this petition since option mentioned above is always with the prosecution. 17 With these observation, this Criminal Original Petition is disposed of. The Trial Court is directed to proceed with the trial and while appreciating the PW.8 evidence, the Trial Court shall take note of the fact that the request to treat the witness as hostile by the prosecution and the credibility of the witness. Sd/Assistant Registrar(CS IV) //True Copy// Sub Assistant Registrar rpl To 1.The Special Judge Special Court for P.C.Act Cases Villupuram 2 The Deputy Superintendent of Police, Vigilance & Anti-Corruption Detachment, Villupuram.

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