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SUPREME COURT OF INDIA
M.M. SUNDRESH, S.V.N. BHATTI, JJ.
Sunder Lal - Appellant
Versus
The State Of Uttar Pradesh & Anr. – Respondents
Criminal Appeal No. 551 of 2024 (@ SLP(CRL.) No.10756/2023)
Decided on : 02-02-2024
Witness Examination - Prosecution Witness - A witness shown in the prosecution list but not examined on behalf of the prosecution can be permitted to be examined as a defence witness if the prosecution has not examined the witness. The Trial Court has the discretion to consider the evidentiary value of the witness while coming to its conclusion.
Fact of the Case:
The appellant sought to examine a witness listed by the prosecution as a defence witness. Both the Trial Court and the High Court declined the request.
Finding of the Court:
The Court found that the witness sought to be examined on the side of the defence had not been examined by the prosecution, and therefore, there was no bar in the law for examining the said witness as a defence witness. The impugned order passed by the High Court confirming the order passed by the Trial Court was set aside, and the appeal was allowed.
Issues: The issue was whether a witness shown in the prosecution list but not examined on behalf of the prosecution can be permitted to be examined as a defence witness.
Ratio Decidendi: The prosecution's choice not to examine a witness listed in the prosecution list allows for the witness to be examined as a defence witness. The Trial Court has the discretion to consider the evidentiary value of the witness while coming to its conclusion.
Final Decision: The appeal was allowed, and the appellant was permitted to examine the prosecution witness as a defence witness.
ORDER :
1. Leave granted.
2. The question which arises for consideration in this appeal is as to whether a witness which has been shown in the prosecution list but not examined on behalf of the prosecution, can be permitted to be examined as a defence witness.
3. In our considered view, both the Courts are wrong in declining the request of the appellant, as factually, the witness sought to be examined on the side of the defence has not been examined by the prosecution. In other words, the prosecution has consequentially chosen to discharge the said witness and, therefore, he has not been put in the witness box to depose on behalf of the prosecution.
4. In such view of the matter, there is no bar in the law for examining the said witness as defence witness. After all, it is for the Trial Court to consider the evidentiary value of the said witness while coming to its conclusion.
5. Accordingly, the impugned order passed by the High Court confirming the order passed by the Trial Court stands set aside.
6. Consequently, the appeal stands allowed. The appellant is permitted to examine the prosecution witness as defence witness. Needless to state that it is well open to the prosecution to cross-examine the said witness.
7. Pending application(s), if any, shall stand disposed of.
A witness listed by the prosecution but not examined can be permitted to be examined as a defence witness if the prosecution has not examined the witness.
The right to a fair trial includes the opportunity to examine defence witnesses not called by the prosecution.
The accused has an unfettered right to summon witnesses essential for the defence, and the trial court's discretion to reject such requests is limited to preventing vexation or delay.
The central legal point established is the importance of fair trial and the accused's right to cross-examine witnesses, allowing the recall of witnesses for cross-examination to ensure the collection....
The court affirmed that repeated opportunities to present defence witnesses must be utilized timely, and attempts to delay proceedings are not permissible.
The central legal point established in the judgment is the discretion of the trial judge in granting permission for the examination of witnesses under section 233 of the Cr.P.C., and the importance o....
The plaintiff, as the dominus litis, has the right to decide which witness to examine and give up, and the defendant cannot compel the Court to summon a witness cited by the plaintiff.
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