1999 Supreme(Cal) 464

High Court Of Calcutta
DIBYENDU BHUSAN DUTTA
STATE OF WEST BENGAL - Appellant
Versus
ARUNESH PATHAK - Respondent
C. R. R.  285  Of  1998
Decided On : 08/24/1999

The right to re-examine a witness under S. 138 of the Evidence Act is a statutory right, but it is limited to the explanation of matters referred to in cross-examination. The court has the discretion to determine the relevancy and admissibility of the evidence sought to be adduced during re-examination.

Headnote:

EVIDENCE ACT - RE-EXAMINATION - SCOPE AND OBJECT - S. 138 - PROSECUTION'S RIGHT TO RECALL WITNESS FOR RE-EXAMINATION - CIRCUMSTANCES AND CONDITIONS - COURT'S DISCRETION - RELEVANCY AND ADMISSIBILITY OF EVIDENCE - S. 136.

Fact of the Case:

In a Sessions Trial, the prosecution sought to recall the autopsy surgeon, PW-2, for re-examination after his cross-examination was completed. The trial court rejected the prosecution's application on the grounds that the specific questions to be put to the witness were not mentioned in the application and that no confusion arose during cross-examination necessitating re-examination.

Finding of the Court:

The court held that the trial court erred in refusing to allow the prosecution to recall the witness for re-examination. It observed that S. 138 of the Evidence Act gives a statutory right to the party calling a witness to re-examine him after cross-examination, but this right is limited to the explanation of matters referred to in cross-examination. The court further held that the prosecution is not required to specify in advance the particular questions to be put to the witness during re-examination, but the court has the discretion to determine the relevancy and admissibility of the evidence sought to be adduced during re-examination.

Issues: 1. Whether the trial court was justified in refusing to allow the prosecution to recall the autopsy surgeon for re-examination? 2. What are the circumstances and conditions under which a party can recall a witness for re-examination? 3. What is the scope and object of re-examination under S. 138 of the Evidence Act? 4. What is the court's discretion in allowing re-examination of a witness?

Ratio Decidendi: 1. The court held that the trial court erred in refusing to allow the prosecution to recall the autopsy surgeon for re-examination because: a) S. 138 of the Evidence Act gives a statutory right to the party calling a witness to re-examine him after cross-examination. b) The prosecution is not required to specify in advance the particular questions to be put to the witness during re-examination. c) The court has the discretion to determine the relevancy and admissibility of the evidence sought to be adduced during re-examination. d) In the present case, the materials on record indicated the necessity for re-examination as the witness's evidence during cross-examination was confusing and required explanation. 2. The court held that a party can recall a witness for re-examination under the following circumstances and conditions: a) If there is ambiguity or something to explain in the witness's deposition. b) If the witness turns out to be hostile or adverse to the party calling him, in which case the court may allow questions in the nature of cross-examination to be put to the witness. c) If new matter is introduced in re-examination, the adverse party gets a right to further cross-examine the witness. 3. The court held that the scope and object of re-examination under S. 138 of the Evidence Act is to: a) Reconcile discrepancies between the statements in examination-in-chief and cross-examination. b) Explain any statement inadvertently made in cross-examination. c) Remove any ambiguity in the deposition or suspicion cast on the evidence by cross-examination. 4. The court held that the court has the discretion to allow re-examination of a witness under the following circumstances: a) If the witness is shown to be not desirous of telling the truth to the court. b) If unforeseen situations develop or there are inadvertent omissions. c) If it is necessary to come at the truth of the case by examining the witness as to new matters, subject to the adverse party's right to further cross-examine the witness.

Final Decision: The court set aside the impugned order of the trial court and directed it to recall PW-2 for re-examination by the prosecution, in accordance with law, and to proceed with the trial and conclude the same as expeditiously as possible.