Should the court permit the accused to recall a prosecutrix for cross-examination in an offence under the POCSO Act?

Brief facts of the case are that the petitioner is facing trial under

Sections 363, 366 and 376 of IPC and section 5(1)/6 6 of the

Protection of Children from Sexual Offences (POCSO) Act, 2012.

During trial, statements of mother and father of the prosecutrix

were recorded on 05.01.2019 & 03.08.2019 as PW-2 and PW-4

respectively and the prosecutrix was examined on 27.11.2018 as

PW-1. Now, prosecutrix had attained the age of majority and she

again approached the petitioner for having a love affair with him

and informed him that she had given the statements under

undue pressure of family members. On the basis of aforesaid

assurance of the prosecutrix, petitioner filed an application under Section 311 of Code of Criminal Procedure, 1973, for

re-examination of the prosecutrix and her parents and specific

reasons were assigned in the application filed as Annexure P/5

but learned trial Court vide its order dated 26.11.2021 has

rejected the application without appreciating the fact that the

statement of the prosecutrix was recorded under duress and

prosecutrix turned major only in the year 2021 (as per the

prosecution). Hence, the present petition filed by the petitioner.

 8. It is observed by above discussion, right to cross-examination is a part of right to fair trial which every person has in the spirit of right to life and personal liberty. In the case in hand, the ground of re-examination is that earlier the statement of the prosecutrix was recorded under duress but the learned trial court ignoring the aforesaid facts and summarily dismissed the application filed by the petitioner. The learned court below ought to have allowed the petition by exercising the jurisdiction under Section 311 Cr.P.C.

9. In the result, I find some merit in this petition and accordingly, the same stands allowed only for re-examination of the prosecutrix.The learned trial court shall afford a chance to the petitioner to cross-examine the prosecutrix. 

HIGH COURT OF CHHATTISGARH, BILASPUR

CRMP No. 74 of 2022

Order delivered on : 25/02/2022

 Manish Sonkar Vs  State of Chhattisgarh

Dated: 25 /02/2022

Print Page

Landmark Judgment of Supreme court on Re-examination of witness

 The very purpose of re-examination is to explain matters which have been brought down in cross-examination. Section 138 of the Evidence Act outlines the amplitude of re-examination. It reads thus:

Direction of re-examination. - The re-examination shall be directed to the explanation of matters referred to in cross- examination; and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

17. There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the Court in accordance with the other provisions. But the Court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination.

18. Even if the Public Prosecutor feels that new matters should be elicited from the witness he can do so, in which case the only requirement is that he must secure permission of the Court. If the Court thinks that such new matters are necessary for proving any material fact, courts must be liberal in granting permission to put necessary questions.

IN THE SUPREME COURT OF INDIA

Crl.A. No. 61 of 1999 with Crl.A. No. 33 of 1999

Decided On: 21.09.1999

Rammi Alias Rameshwar Vs. State of Madhya Pradesh

Hon'ble Judges/Coram:

K.T. Thomas and A.P. Misra, JJ.

Citation: AIR 1999 SC 3544

Print Page

Whether new matter can be introduced in re-examination of witness?

 Section 138 of the Evidence Act prescribes the order of
examination and says that the witness shall be first examined­in­chief,
then (if the adverse party so desires) cross­examined;  then (if the party
calling him so desires) re­examined.    Section 138 further says that the
examination and cross­examination must relate to the relevant facts, but
the cross­examination need not be confined   to the facts   to which the
witness testified on his examination­in­chief.  Section 138 further provides
that the re­examination shall be  directed to the explanation of matters
referred to in cross­examination; and, if new matter is, by permission of
the court, introduced in re­examination, the adverse party may further
cross examine upon that matter.       Bare perusal   of section 138 would
show that the cross­examination need not be confined  to the facts stated
by the witness in examination­in­chief.  If the facts which are not stated
by   the   witness   in     examination­in­chief   are   put   to   him   in   the   crossexamination,
  some   explanation   may   be   required   to   be   given   by   the
witness to the matters so referred to in the cross­examination.   It is for
this reason, the re­examination can be permitted by the court to explain
the facts which were put to him in the cross­examination.  Section 138

specially says that re­examination shall be directed to explain the matters
referred to in the  cross­examination.  It is thus clear that re­examination
is not restricted to explaining any ambiguity in the oral evidence (as is
commonly misconstrued by many) but to explain any matter which has
been referred  to in the cross­examination of the witness. To protect the
interests of the party cross examining the witness at the first instance
against any new material introduced in the re­examination, Section 138
further provides that if new facts are introduced in the re­examination,
the adverse party   would have a right of   further cross­examination on
that matter.     The provisions of section   138 are so designed   as to do
complete justice between the parties and to give them full opportunity of
adducing evidence.   Re­examination  has to be liberally  allowed where
new facts which are introduced in the cross­examination.
6 I am fortified in my view by the decision of the Supreme Court in
Rammi  alias Rameshwar  vs.   State of M.P. (1999) 8 Supreme Court
Cases 649.   In paragraph 17 of the decision, the Supreme Court has
observed  : 
“17.   There is an erroneous impression   that re­examination
should   be confined   to   clarification of ambiguities which have
been brought   down in cross­examination. No doubt, ambiguities
can be resolved  through re­examination.  But that is not the only
function of the re­examiner.   If the party  who called the witness
feels that   explanation is required   for any matter referred to in
cross­examination he has the liberty   to put any question in re­

examination to get the explanation”.
7 The decision of the Supreme Court clears the erroneous  impression
which then existed that the re­examination   should be confined only to
clarification of the ambiguities   which have been brought down in the
cross­examination.   Undoubtedly,   ambiguities  can be resolved through
re­examination but that is not the only purpose for which  re­examination
is allowed.  If the party who had called a witness feels that an explanation
is required  for any  matter referred to in the cross­examination, he can be
permitted by the court to put any question  in  that regard in the  reexamination.
 Interest of the adverse party is protected by permitting him
further cross­examination as to any new matter introduced in the reexamination.
   
8 Mr.   Damale,   learned   counsel   for   the   defendant   (petitioner)
submitted that the  decision in the case of  Rameshwar  vs. State of MP
(supra) was rendered in a criminal proceedings and cannot be applied to
a civil suit.  The submission is stated only to be rejected.   Re­examination
is allowed under section 138 of the Evidence Act.   Section 138  applies to
both   to criminal   as well as civil trials.     Principle   laid down by the
Supreme Court  in the case of Rameshwar (supra) cannot be restricted to

only to a criminal trial.   It applies equally to a trial of a civil case. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL  APPELLATE SIDE JURISDICTION
WRIT PETITION NO.  8674 OF   2010 
SHRI GURDIAL SINGH, , 
V/s. 
 M/s. Arudatta Triotex Engineers Pvt.Ltd., 
          ­­­­­
CORAM  :  D. G. KARNIK, J.
DATE      :  07th  JUNE, 2011.
Citation:2011(6) ALLMR 505,2011(5) MHLJ889

Print Page

Gujarat HC: Material contents required to be stated in application for calling witness for examination or his re-examination

In a more recent decision in Rajaram Prasad Yadav
vs. State of Bihar and another [2013 14 SCC 461], the
nature and scope of powers of the Court under the said

provisions   has   been   explaining   and   enumerated   in
detail   and   it   was   held   that   such   powers   can   be
exercised   at   any   stage,   but   the   paramount
consideration should always be of just decision of the
case.
6. Therefore,   the   centripetal   consideration   for
exercise   of   powers   for   calling   or   recalling   of   the
witnesses at any stage of the trial, is that the same
is to help the Court to reach a just decision in the
case. In order that the Court is able to come to a
conclusion that witness proposed to be examined or reexamined
  is   necessary   to   be   examined   or   re­examined
for   the   purpose   of   reaching   a   just   decision   in   the
case, the applicant making such application before the
Court is required to spell out in its application the
relevance   of   the   witness’s   evidence   needed   to   be
adduced   by   calling   him   or   re­calling   him   for
examination. The pleadings has to contain the related
facts, though may be broadly yet, precisely indicating
the reason and context in which the witness is called
for. In an application made under Section 311, Cr.PC,
unless   the   facts,   pleadings   and   averments   meet   with
those essential requirements, it may not be possible
to judge the prayer in right perspective.
6.1 Measured   by   above   yardstick,   in   the   facts   and
circumstances of the case, the application made by the
prosecution,   was   with   inadequate,   if   not   cryptic,
pleadings as regards role and relevance of each of the

witnesses proposed to be called for examination. The
application appears to have been made in cursory way,
at   least   in   that   regard.   Witness   No.6   was   dropped
stating in the endorsement below the application that
the applicant was not willing to examine him. In any
view,   the   application   could   not   be   said   to   be
revealing   relevant   facts   attendant   to   each   witness
because of which prosecution wanted to call him for
examination. The pleadings in the application of the
prosecution   was   laconic   in   terms   of   requisite   facts
and aspects so as to bring out necessary ingredient
that   the   examination   of   the   said   witnesses   was
necessary   for   a   just   decision   in   the   case,   the
prosecution   ought   to   have   spelt   out   the   relevant
details in the above context with regard to each of
the witnesses.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION 

RAJESHKUMAR BABULAL PATEL V STATE OF GUJARAT

CORAM:  MR.JUSTICE N.V.ANJARIA
 Date : 15/04/2015
Citation; 2015 CRLJ(NOC)493 GUJ

Print Page

Whether prosecutor can ask about new matters in Re-examination of witness?

In this context, we think it  apt  to  reproduce  some  passages  from
Rammi @ Rameshwar V. State  of  Madhya  Pradesh[28],  where  the  Court  was
dealing with the purpose of re-examination.  After referring to Section  138
of the Evidence Act, the Court held thus:
"There is an erroneous impression that re-examination should be confined  to
clarification  of  ambiguities  which  have  been  brought  down  in  cross-
examination. No doubt, ambiguities can be resolved  through  re-examination.
But that is not the only function of  the  re-examiner.  If  the  party  who
called the witness  feels  that  explanation  is  required  for  any  matter
referred to in cross-examination he has the liberty to put any  question  in
re-examination  to  get  the  explanation.  The  Public  Prosecutor   should
formulate his questions  for  that  purpose.  Explanation  may  be  required
either when the ambiguity  remains  regarding  any  answer  elicited  during
cross-examination or even otherwise. If the  Public  Prosecutor  feels  that
certain answers require  more  elucidation  from  the  witness  he  has  the
freedom and the right to put such questions as he deems necessary  for  that
purpose, subject of course to the control of the court  in  accordance  with
the other provisions. But  the  court  cannot  direct  him  to  confine  his
questions to ambiguities alone which arose in cross-examination.

Even if the Public Prosecutor feels that  new  matters  should  be  elicited
from the witness he can do so, in which case the only  requirement  is  that
he must secure permission of the court. If the court thinks  that  such  new
matters are necessary for proving any material fact, courts must be  liberal
in granting permission to put necessary questions".

 We have reproduced the aforesaid paragraphs  to  highlight  that  when
the prosecution has such a right in the  process  of  re-examination,  as  a
natural corollary, the testimony of a  hostile  witness  cannot  be  brushed
aside.  On the contrary, both the prosecution and the defence can  rely  for
their stand and stance.  Emphasis on re-examination by  the  prosecution  is
not limited to any answer given in the  cross-examination,  but  the  Public
Prosecutor has the freedom and right to  put  such  questions  as  it  deems
necessary to  elucidate  certain  answers  from  the  witness.   It  is  not
confined to clarification of ambiguities, which have been  brought  down  in
the cross-examination.
 IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 554 OF 2012

Vinod Kumar  V State of Punjab                    
 Citation;2015ALLSCR900,AIR2015SC1206,2015CriLJ1442,

Print Page