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Tag: Evidence Act 138 – Order of Examinations

Rajinder Pershad (Dead) By Lrs Vs Darshana Devi on 10 Aug 2001

Posted on May 9, 2021 by ShadesOfKnife

A Division bench of Apex Court held as follows,

In the absence of cross-examination of the postman on this crucial aspect his statement in the chief-examination has been rightly relied upon. There is an age old rule that if you dispute the correctness of the statement of a witness you must give him opportunity to explain his statement by drawing his attention to that part of it which is objected to as untrue, otherwise you can not impeach his credit. In State of U.P. v. Nahar Sing (dead) and Ors., [1998] 3 SCC 561, a Bench of this Court (to which 1 was a party) stated the principle that Section 138 of the Evidence Act confers a valuable right to cross-examination a witness tendered in evidence by opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by permitting a witness to be questioned, inter alia, to test his veracity. It was observed.
“The oft-quoted observation of Lord Herschell, L.C. in Browne v. Dunn clearly elucidates the principle underlying those provisions. It reads thus:
“I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses.”

Rajinder Pershad (Dead) By Lrs Vs Darshana Devi on 10 Aug 2001

Citations : [2001 AIR SC 3042], [2001 SCALE 5 203], [2001 SUPREME 6 82], [2001 AIR SC 3207], [2001 SCC 7 69], [2002 UJ SC 1 89], [2001 DLT SC 93 1], [2001 UC 2 415], [2001 ALR 44 843], [2002 LW 1 69], [2001 AIR SCW 3042], [2001 JT SC 6 400]

Other Sources :

https://indiankanoon.org/doc/1624346/

https://www.casemine.com/judgement/in/5609ad98e4b0149711411cf1

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision Evidence Act 138 - Order of Examinations Evidence Act 138 - Right to cross-examination a witness tendered in evidence by opposite party Evidence Act 146 - Questions lawful in cross-examination Landmark Case Rajinder Pershad (Dead) By Lrs Vs Darshana Devi | Leave a comment

K.C. Kanniyappa Vs K.C. Lalitha and Anr on 26 Sep 2005

Posted on November 26, 2020 by ShadesOfKnife

Single-judge bench of Andhra Pradesh held that, cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.

From Para 3,

3. Since O.S. No. 1141 of 2000, later renumbered as O.S. No. 20 of 2003, was ordered to be tried along with O.S. No. 47 of 1998, obviously common evidence is being recorded in both the suits. When two suits are clubbed and tried together, all the parties to the suits have a right to cross-examine the witness examined by the adversary, because Section 138 of the Evidence Act, 1872 (‘the Act’) confers such right on them. As per that Section 138 of the Act the witness called by a party shall first be examined-in-chief and if the adverse party so desires he can cross-examine him and then if the party calling him so desires, can re-examine him. That section specifically lays down that Chief examination and cross-examination must relate to relevant facts, but cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.

Casemine copy:

K.C. Kanniyappa Vs K.C. Lalitha and Anr on 26 Sep 2005 (casemine)

Legal Crystal copy:

K.C. Kanniyappa Vs K.C. Lalitha and Anr on 26 Sep 2005 (legalcrystal)

Citations : [2006 ALD 1 370], legalcrystal.com/442436

Other Sources :

https://indiankanoon.org/doc/1166172/

https://www.casemine.com/judgement/in/5608f85de4b01497111422e0

https://www.legalcrystal.com/case/442436/k-c-kanniyappa-vs-lalitha-anr

Posted in High Court of Andhra Pradesh Judgment or Order or Notification | Tagged 1-Judge Bench Decision Evidence Act 138 - Cross-examination need not be confined to the facts to which the witness testified on his Examination-in-chief Evidence Act 138 - Order of Examinations K.C. Kanniyappa Vs K.C. Lalitha and Anr Reportable Judgement or Order Work-In-Progress Article | Leave a comment

Rajaram Prasad Yadav Vs State of Bihar and Anr on 4 Jul 2013

Posted on November 23, 2020 by ShadesOfKnife

Supreme Court passed these guidelines when a witness is called or recalled for evidence.

a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate,
inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.
d) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for
such facts, which will lead to a just and correct decision of the case.
e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it
apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
f) The wide discretionary power should be exercised judiciously and not arbitrarily.
g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to
arrive at a just decision of the case.
h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also
ensure that an opportunity of rebuttal is given to the other party.
n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.

Rajaram Prasad Yadav Vs State of Bihar and Anr on 4 Jul 2013

Citations : [2013 AD SC 8 583], [2013 AIR SC 3081], [2013 JLJR 3 447], [2013 JCC 3 2179], [2013 JT SC 11 118], [2013 NCC 2 582], [2013 PLJR 4 34], [2013 RCR CRIMINAL 3 726], [2013 SCALE 8 316], [2013 SCC 14 461], [2013 SCR 7 420], [2013 UC 3 1631], [2014 SCC CRI 4 256], [2013 SCC ONLINE SC 577], [2013 AIC 128 29], [2013 AIR SC 0 4179], [2013 AIR SC 1746], [2013 CRLJ SC 3777], [2013 SLT 6 571], [2013 SUPREME 4 621], [2013 AIOL 432], [2013 KCCR SN 4 396], [2013 SCJ 7 986], [2013 BOMCR CRI SC 4 35], [2013 AIR SCW 0 4179]

Other Sources :

https://indiankanoon.org/doc/3583407/

https://www.casemine.com/judgement/in/5609af2be4b0149711415b41

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision CrPC 311 - Power to summon material witness or examine person present Evidence Act 138 - Order of Examinations Issued or Recommended Guidelines or Directions or Protocols to be followed Landmark Case Legal Procedure Explained - Interpretation of Statutes Rajaram Prasad Yadav Vs State of Bihar and Anr | Leave a comment

Bipin Shantilal Panchal Vs State of Gujarat and Anr on 22 February, 2001

Posted on January 20, 2020 by ShadesOfKnife

In this landmark judgment, Supreme Court of India had formulated the following procedure while questions are put to witness during cross-examination. Also, per 138 Evidence Act, ‘Chief examination and cross-examination must relate to relevant facts, but cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.‘.

It has been held that, where admissibility of document is objected then the Court should tentatively mark the document as an exhibit and can determine the objections at the last stage in the final judgment. But, while holding so, the Apex Court carved an exception regarding admissibility of a document where objection is based on deficient stamp duty, then the Court has to decide the objection before proceeding further.
In this regard, reliance is placed upon the judgment of the Supreme Court reported in AIR 1966 SC 1631 for the proposition that no act of Court shall harm a litigant and it is the bounden duty of Court to see that if a person is harmed by a mistake of the Court, he should be restored to the position he would have occupied.

Bipin Shantilal Panchal Vs State of Gujarat and Anr on 22 February, 2001

Citations: [2001 ACR SC 1 8], [2001 SCC 3 1], [2001 SUPREME 2 65], [2001 CRILJ 1254], [2001 ALLMR CRI SC 452], [2001 UC 1 471], [2001 PLJR 2 132], [2001 GLH 2 545], [2001 SCR 2 29], [2001 CRLJ SC 1254], [2001 SCC CRI 417], [2001 RCR CRIMINAL 1 859], [2002 LW CRL 1 115], [2001 ELT SC 134 611], [2001 CGLJ 1 366], [2001 ECC 74 287], [2001 RLW SC 1 169], [2001 UJ SC 1 573], [2001 AIR SC 1158], [2001 JT 3 120], [2001 SCALE 2 167], [2001 AIR SC 841], [2001 CRIMES SC 1 288], [2001 GLR 3 168], [2001 OLR 1 428], [2001 ALD CRI 1 548]

Other Source links: https://indiankanoon.org/doc/372318/ or https://www.casemine.com/judgement/in/5609ad94e4b0149711411c07


AP High Court passed a judgment based on this case law here. Recent Bombay High Court judgment is here.

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 3-Judge (Full) Bench Decision Bipin Shantilal Panchal Vs State of Gujarat and Anr CrPC 309 - Power to Postpone or Adjourn Proceedings Evidence Act 138 - Cross-examination need not be confined to the facts to which the witness testified on his Examination-in-chief Evidence Act 138 - Order of Examinations Landmark Case Legal Procedure Explained - Interpretation of Statutes Objections During Witness Cross Examination Reportable Judgement or Order Sandeep Pamarati | Leave a comment

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