Whether the Defence Can Examine a Prosecution Witness in a Criminal Trial
A recurring question in criminal trials is whether the defence can call as its own witness a person who has already been examined and . The issue matters practically: witnesses are often given up mid-trial, sometimes as , and the accused may genuinely need their testimony to raise a doubt about the prosecution story.
The Short Answer
Yes, generally the defence can call a witness who has been , but the position is conditional. A discharged witness may be examined as a , and the court holds wide powers to summon or recall any person whose evidence appears 2025 4 Supreme 641. However, a witness who has already been fully examined as a prosecution witness cannot be allowed to merely to advance the defence's case 2023 0 Supreme(All) 2204.
The Court's Power Under Section 311 CrPC
empowers any court, at any stage of an inquiry, trial, or proceeding, to summon any person as a witness, examine a person in attendance, or a person already examined. The provision casts a mandatory duty on the court where the evidence of a person appears to it to be 2025 4 Supreme 641.
The underlying object is to prevent a caused by the mistake of either party in bringing valuable evidence on record or leaving ambiguity in witness statements. The determinative factor is whether the evidence is essential to a just decision, not which party seeks it 2022 0 Supreme(P&H) 1643.
When a Discharged Witness Becomes a
Where the prosecution gives up a witness — for instance, as having been — the prosecution is not bound to examine that witness. Its obligation is only to present the witness in court and provide the name and particulars to the accused, enabling the defence to examine the witness as their own, or enabling the court to call the witness under 1975 0 Supreme(J&K) 74. Case law confirms there is no bar for the defence to produce this witness in support of his defence, and the mere fact that the prosecution discharged a witness is not a ground to discredit that person's evidence as a 2016 0 Supreme(All) 585 and 2016 0 Supreme(All) 581.
The prosecution's discretion to select witnesses is settled: it need not examine every witness cited in the calendar of witnesses, only those essential to unfolding its narrative. If the Public Prosecutor has reliable information that a witness would not support the prosecution version, the prosecutor may skip that witness, and the defence is free to cite and examine that person as a 1975 0 Supreme(J&K) 74 and 2000 6 Supreme 245. This discretion, however, must be exercised ; where a prosecutor genuinely believes witnesses have been , it would be unreasonable to insist that they be tendered before the court 2025 0 Supreme(HP) 1047.
Limits on Recalling a Witness Already Examined
The position is different where the witness has already testified. The Supreme Court in held that a prosecution witness who has been examined, cross-examined, and discharged cannot be produced as a 2023 0 Supreme(All) 2204. Once examined as a prosecution witness, a person cannot be allowed to perjure himself by resiling from the testimony given in Court on oath 2023 0 Supreme(All) 2204. Nor can be read as compelling the attendance of a prosecution witness already examined and discharged to be juxtaposed as a 2023 0 Supreme(All) 2204.
That said, the court retains its Section 311 power to recall such a witness where the evidence is genuinely essential for a just decision. Notably, where a witness examined by one party is recalled at that party's request after discharge, the witness remains a witness of the party which first examined them, and the subsequent statement is treated as a continuation of the earlier evidence 1997 0 Supreme(Mad) 1452.
Filling a Lacuna Is Not Permissible
A critical distinction runs through these cases: recalling a witness to secure essential evidence is legitimate; recalling one to patch a gap in the defence case is not. Where evidence material to the defence — for example, chats available to the accused — should have been used during cross-examination of the witness, seeking recall after the prosecution evidence closed amounts to , which courts will not permit 2024 0 Supreme(Ker) 896.
A lacuna in the prosecution case must also be distinguished from an oversight by a public prosecutor in producing materials or eliciting relevant answers, which courts may allow to be rectified 1999 6 Supreme 4. Where neither party wishes to examine a person but the court considers the evidence necessary, the court cannot compel either side to call the witness but may invoke its Section 311 power, read with , to call the person as a 2026 0 Supreme(Guj) 937.
The Dimension
Comparable principles operate in other jurisdictions. In Malaysia, the has held that although the prosecution may choose whether to call a particular witness, that discretion is subject to fairness and good faith, and witnesses investigated by the police and whose statements were recorded must be offered to the defence. Failure to do so, without a plausible reason, infringes the accused's right to obtain and adduce evidence in support of the defence and can amount to a warranting acquittal
SANTOSHKUMAR SUKUMARAN vs PP
Santoshkumar al Sukumaran vs Public Prosecutor
. This underscores the common principle that the defence's access to relevant evidence is a core element of a .Key Takeaways
- The defence can generally examine a witness discharged or given up by the prosecution, including one given up as 1975 0 Supreme(J&K) 74 and 2016 0 Supreme(All) 585.
- The court may summon or recall any witness under Section 311 CrPC when the evidence is 2025 4 Supreme 641 and 2022 0 Supreme(P&H) 1643.
- A witness fully examined and discharged as a prosecution witness cannot be produced as a to resile from sworn testimony, per 2023 0 Supreme(All) 2204.
- Section 311 cannot be used to fill lacunae in the defence case after prosecution evidence closes 2024 0 Supreme(Ker) 896.
- The prosecution's discretion to skip witnesses must be exercised fairly and bona fide, and courts may alternatively call essential witnesses as court witnesses 2025 0 Supreme(HP) 1047 and 2026 0 Supreme(Guj) 937.
This article is general information about criminal procedure and should not be treated as advice for any specific case; outcomes depend on the facts and stage of trial.
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