State Vs. N. Somasekhar

State vs N. Somasekhar

Disposition Petition dismissed Court Karnataka Decided Apr 19, 1993

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Citation: sooperkanoon.com/378743
Court: Karnataka High Court
Judge: Jagannatha Hegde, J.
Decided On: Apr 19, 1993
Case Number: Crl. Petn. No. 347 of 1993
Subject: Criminal
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

EVIDENCE ACT, 1872 (Central Act No. 1 of 1872) - Section 154 - Hostile Witness: Statement before Investigating Officer to be examined, manner of answering, demeanour while answering to be considered -Discretion to permit cross-examination judicial - Witness declared hostile only if hostile to party calling him and n...

Key legal issue: Criminal
Outcome / disposition: Petition dismissed
Acts & sections: Evidence Act, 1872 - Sections 154

Parties & Advocates

Appellant / Petitioner

State

Advocate Mari Gowda, HCGP

Respondent

N. Somasekhar

Advocate C.H. Hanumantharaya and ;C.G. Sundar, Advs.

Legal References

Acts: Evidence Act, 1872 - Sections 154
Reported In: 1993(2)ALT(Cri)214; ILR1993KAR1527; 1992(2)KarLJ227

Excerpt

.....be interfered with as a matter of course. - code of civil procedure, 1908. order 21 rule 37 to 40: [a.s. pachhapure, j] issue of warrant against the judgment debtor - procedure to be followed challenge to order of executing court directing the arrest of the judgment debtor without show cause notice - held, to issue warrant of arrest against the judgment debtor, the court has to adopt the procedure prescribed under the provision of order 21 rule 37 to 40 of c.p.c., it is necessary to note that, when the personal liability of an individual is to be taken away under an order directing the arrest, it is necessary in law to issue a show cause notice. there must be material to prove that the judgment debtor is avoiding the payment despite the fact that he has sufficient means to pay and then the court has to pass appropriate order issuing the warrant of arrest. the procedure followed by the executing court is contrary to the provisions of order 21 rule 37 to 40. impugned order was set aside and matter remitted to executing court for fresh consideration. - a party will not normally be allowed to cross-examine its own witness and declare him hostile, unless the court is satisfied that the statement of a witness exhibits an element of hostility or that he has resiled from a material statement which he made before an earlier authority or when the court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth......to put any questions to dr. vishnumurthy, pw-20 and dr. shenoy, pw-32 which might be put in cross-examination by the adverse party.2. the learned sessions judge after hearing both sides has rejected this application. it is settled law that section 154 of the evidence act empowers the court to permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of his cross-examination, provided it takes care to give an opportunity to the accused to cross- examine him on the answers elicited which do not find place in the examination in chief (see:) : 1964 crilj472 dahyabhai chhaganbhai thakkar v. state of gujarat. a party will not normally be allowed to cross-examine its own witness and declare him hostile, unless the court is satisfied that the statement of a witness exhibits an element of hostility or that he has resiled from a material statement which he made before an earlier authority or when the court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth. before a witness can be declared hostile and the party examining the witness is allowed to cross-examine him, there must be some material to show that the witness is not speaking the truth or has exhibited an element of hostility to the party for whom he is deposing. (see) : 1977 crilj173 rabindra kumar v. state of orissa. before permitting the prosecution to cross examine the prosecution witness the judge will have to examine the statement made by the witness before the investigating officer to find out whether the witness is really hostile to the party calling him. he may have to consider the manner in which the witness answers the questions, his demeanour while answering questions to examine whether he is attempting to tamper the case of the prosecution. the discretion of granting permission is a judicial discretion and is required to be exercised in a judicious way. therefore,.....

Full Judgment

ORDER

Jagannatha Hegde, J.

1. This is an application filed by the State under Section 482 Cr.P.C. challenging an order dated 11.1.1993 passed by the learned II Addl. Sessions Judge, Mysore, in Sessions Case No. 101/91 rejecting the application of the prosecution to permit the prosecution to put any questions to Dr. Vishnumurthy, PW-20 and Dr. Shenoy, PW-32 which might be put in cross-examination by the adverse party.

2. The learned Sessions Judge after hearing both sides has rejected this application. It is settled law that Section 154 of the Evidence Act empowers the Court to permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of his cross-examination, provided it takes care to give an opportunity to the accused to cross- examine him on the answers elicited which do not find place in the examination in chief (see:) : 1964 CriLJ472 Dahyabhai Chhaganbhai Thakkar v. State of Gujarat. A party will not normally be allowed to cross-examine its own witness and declare him hostile, unless the Court is satisfied that the statement of a witness exhibits an element of hostility or that he has resiled from a material statement which he made before an earlier authority or when the Court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth. Before a witness can be declared hostile and the party examining the witness is allowed to cross-examine him, there must be some material to show that the witness is not speaking the truth or has exhibited an element of hostility to the party for whom he is deposing. (See) : 1977 CriLJ173 Rabindra Kumar v. State of Orissa. Before permitting the prosecution to cross examine the prosecution witness the Judge will have to examine the statement made by the witness before the Investigating Officer to find out whether the witness is really hostile to the party calling him. He may have to consider the manner in which the witness answers the questions, his demeanour while answering questions to examine whether he is attempting to tamper the case of the prosecution. The discretion of granting permission is a Judicial discretion and is required to be exercised in a Judicious way. Therefore, the witnesscould be regarded as hostile only if the Court is of the opinion that thewitness is hostile to the party calling him and that he is not desirous oftelling the truth.

3. PW-32, Dr. Shenoy, has conducted post-mortem examination over the dead body on 8.4.1991 and has issued a post-mortem report. It is stated that he is the Professor of Forensic Medicine in Mysore Medical College and is a Government Servant. The Trial Court has discussed in para-16 of its order in detail, the deposition of PW-32 and has come to the conclusion that the prosecution had not made out any ground to hold that PW-32 has become hostile to the prosecution. Even assuming that the accused has elicited certain information from PW-32 during his cross-examination which might be taken advantage by him, it cannot be said that the witness has exhibited animus attitude towards the prosecution. After all he might have given his opinion. I have also gone through the deposition of PW-32 and I do not find any reason to differ from the view taken by the learned Sessions Judge.

4. PW-20, Dr. Vishnumurthy, had been summoned near the swimming pool where the deceased person was found dead. He had examined the dead body on the evening of 7.4.91. He is attached to a hospital which is just opposite to Nazirabad Police Station. He happens to be a psychologist also. Certain informations relating to child psychology were elicited during his cross-examination. The learned Sessions Judge after considering his entire deposition has come to the conclusion that he cannot be said to have turned hostile. This witness is also examined as an Expert. The depositions of PWs-20 and 32 do not show that they have been won over or that they are against the prosecution.

5. It may also be noted that the learned Sessions Judge had an opportunity of examining the demeanour of these two witnesses. In such a situation, the discretion exercised by him under Section 154 of the Evidence Act for refusing to permit cross-examination should not be interfered with as a matter of course. Thus, no case has been made out by the State to interfere with the impugned order passed by the learned Sessions Judge.

The Petition is, therefore, dismissed.

Same Court & Year Karnataka · 1993 Same Parties State vs N. Somasekhar Same Subject Criminal Same Judge Jagannatha Hegde, J. Acts & Sections Evidence Act, 1872 - Sections 154

Criminal