Case BriefsHigh Courts

Madhya Pradesh High Court: Subodh Abhyankar, J., allowed a petition which was filed aggrieved by the order whereby the right of the petitioner/accused to cross examine the Investigating Officer had been closed.

Petitioner was facing trial for offence under Sections 342, 366, 376 of the Penal Code, 1860 in the Court of IIIrd Additional Sessions Judge wherein the Investigation Officer, was being examined and in the course of his cross examination a question was asked by the counsel appearing of the petitioner/accused which, according to the Judge of the trial court, was a matter of argument only and was not relevant. After which judge of the trial Court directed the counsel appearing for the petitioner not to ask such irrelevant questions, otherwise his right to cross examine the witness could be closed. Unfortunately the next question asked by the counsel for the petitioner, came to be as irrelevant, after which the Judge closed the right of the petitioner/accused to cross examine the witness.

Counsel for the petitioner submitted that the questions which were put to the Investigating Officer were relevant and even otherwise the Judge of the trial court ought not to have closed the right of the petitioner which is a valuable right and all the more important in a serious offence like Section 376 of IPC.

The Court before giving any merits of the case referred to the questions that led to the controversy and opined that order passed by the Judge of the trial court leaves no manner of doubt that viewed from any angle, the impugned order cannot be sustained in the eyes of law as it defeats the entire purpose of the right of an accused to cross examine the witness.

It is trite that cross-examination is the only tool available to a defence lawyer to test the veracity of a prosecution witness, it is the only way out to an accused to clear his name from the alleged offence hence his right to cross examine a witness cannot be curtailed in such a cavalier manner.

The Court however explained that the art of cross examination was very difficult to master and the same takes years of hard work and exposure to trials that one can have some expertise in it. The Court stated it is only through a long and hard exercise of trial and error method that a lawyer learns the art of cross examination but if the judge presiding over the matter is impatient or edgy, it not only culminates into an order like the impugned one, but also hampers the overall learning process or grooming of a lawyer who, before becoming an expert trial court lawyer, is bound to falter many a times by asking irrelevant or inadmissible questions to a witness in the box.

The Court further stated that it is expected from the judges of the Trial court to be patient and tolerant in their approach towards the Trial Court lawyers during the examination of witnesses.

The Court was of the opinion that if Judge was of the opinion that despite his warnings the counsel appearing for the petitioner has continued to ask irrelevant questions, then other modes were also available to the learned Judge of the trial court as are prescribed in the Evidence Act, 1872 from Sections 146 to 152 and in some exceptional cases, the learned judge may also resort to the measure like imposing cost on the counsel for repeatedly and recklessly asking the irrelevant and inadmissible questions but, instead of taking resort of such procedure, the learned Judge has closed the right of the accused to cross examine the witness, which cannot be countenanced in the eyes of law.

The Court set aside the impugned order and directed to recall the Investigating Officer and allow the counsel for the petitioner to cross-examine him.[Sachin v. State of M.P., Miscellaneous Criminal Case No. 35901-2021, decided on 30-07-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Advocates before the Court:

Counsel for the applicant: Ms Sonali Goyal

Govt. Advocate for the respondent/State: Shri Valmiki Shakargayen

Op EdsOP. ED.


Identity may be thought of as a quality of a thing or a person. In an instance where the court must know the identity of any person or thing which would substantially help in adjudicating upon a case, then every fact which establishes such identity becomes relevant. With the development of law, police use visual, scientific, audio, etc. modes for obtaining identification of suspects. Indeed, there is no restriction on facts to be given in court to establish the identity in question, but their admissibility may vary. This paper focuses on the study of witness evidence that are admissible in proving the identity of a suspect and problems which may curtail the admissibility of such shreds of evidence.

Significance of identification evidence

The two questions which hold great importance in criminal trials are: whether the offence that is alleged was committed and if yes, then who committed it. Talking particularly about the questions pertaining to identity may come up in two ways—

  1. A person’s identity with an ascertained person.
  2. A person’s identity as the doer of a particular act.

When a person’s identity with an ascertained person is in issue then it may be proved and disproved presumptively by similarity or dissimilarity of characteristics like weight, size, hair, voice, etc[1].

The identity of a person or thing is necessary to prove relevant facts of the case and the identification test is not a substantive piece of evidence. It provides a kind of assurance to the investigating agency and the court that they are proceeding in the right direction. The same was held by the court in Musheer Khan v. State of M.P.[2].

There is this notion that witnesses are the best sources of extracting reliable evidence because of the assumptions that if a person sees someone commit a crime especially a stranger he or she would not forget the accused face or appearance because the person witnessed an unusual event and it is a human tendency to remember such things somewhere in the back of their minds which was not normal to them. Also, Bentham said “witnesses are the eyes and ears of justice”, this makes the role of a witness of paramount importance in the justice delivery system.

Though identification evidence is potentially unreliable and merely corroborative in nature, errors in recording them or cases of mistaken identity though in good faith can lead to effects like wrong convictions which can prove to be extremely serious for the defendants and his/her family also many times. For a long time misidentifications have bedeviled our justice system and continue to, with a rate of 52% wrongful convictions every year as a consequence of it. So, the testimonies and identification evidence made by a witness must be dealt with utmost sensitivity as they play a vital role in deciding a matter and delivering judgment. Any false or wrong identification made on part of the witness becomes a gateway to the wrongful conviction of an innocent for the crime which that person to all intents and purposes didn’t commit. It is of paramount importance for the Judge to check and weigh the credibility and accuracy of such identification evidence given by the witnesses along with keeping a check that the evidentiary standards are maintained to avoid a miscarriage of justice.

Many times, it becomes difficult to identify the accused as the crimes are committed under the cover of darkness. In such cases, the identity of a person or thing and commission of a crime can be established using circumstantial evidence[3]. In cases where the guilt gets established by circumstances in such cases, the identification of the accused either in court or through test identification parade is not a sine qua non[4].

Under Indian law

Section 9 of the Evidence Act, 1872 deals with the facts which establish the identity of anything or person.

As per the section, all these facts are relevant[5]

  1. One’s which are necessary to explain a fact in issue or relevant fact.
  2. Which are required to introduce any fact in issue or relevant fact.
  3. That support the inference suggested by a fact in issue or relevant fact[6].
  4. Which rebut any or all conjectures made by a fact in issue or relevant fact[7].
  5. Which establish the identity of a person or a thing whose identity is relevant.
  6. Which fix the time or place at which the facts in issue or relevant fact happened[8].
  7. Establish the relations of parties between whom any such fact was transacted.

These facts are not otherwise admissible as far as they are necessary for the purpose pointed out in each category[9]. These facts sometimes give strength to the evidence given by one side and sometimes break the force of evidence given by the adverse side. These are explanatory pieces of evidence that are not relevant in themselves and the effect of these may not be affirmative in all cases, still, they prove to be substantial for corroboration of other shreds of evidence.

As we know that our criminal law stands on the saying “innocent until proven guilty” and this principle makes it mandatory for the prosecution to establish the evidence beyond reasonable doubt for the conviction to take place. The cases which rely on identification evidence tend to fail even if there exist any room for misidentification to occur because then the probative value of such evidence slump down[10].

There are various modes of identification—

  1. Photofits

Photofit is a reconstructed picture of a person what in layman terms we know to be a sketch of the face of a person or an attempted description of someone[11]. This technique is basically used as an attempt to reproduce the face of the suspects soon after the crime takes place so that the witness can let out whatever he can recall from the incident which he witnessed. It is claimed by Psychologist Ebbinghaus in “forgetting curve” that–

if attempts are made to recall and rehearse information then it can become a part of long-term memory otherwise at its first stage the information forms a part of our short-term memory which tends to fade away over a period of time[12].

The chances of misidentification increase with the increase in the time interval between the crime and identification exercise. In Reg. v. Cook (Christopher) the appeal that a photofit was not a written statement that could come under the purview of the rule against hearsay was dismissed and the photofit evidence was held to be admissible by virtue[13].

  1. Identification by photographs

Identification by photograph is another method used specifically at the investigation stage. It was held by the Supreme Court that there is no legal provision which states that identification by photograph is not admissible. In fact, it becomes a substantive piece of evidence when such identification is made in the Court[14]. Moreover, according to the court, identification by photograph must take place of test identification[15]. It is to be noted that in cases where the witness lays out some identifying features of the accused the course of action to be adopted by the investigating officer should be the one where the witness is shown more than one photograph of the suspect if available to draw out a confirmation as to the identity of the accused[16].

  1. Video and voice identification

Identification of the accused by the witness through video recording is admissible. In the case of D. Gopalakrishnan v. Sadanand Naik[17], it was said by the court that where there is the availability of video recording through which the witness can testify the identity of the accused then the photographs of the suspects should not be shown before such identification.

On the other hand, identification by voice is a bit risky in criminal trials particularly where the witness is not acquainted with the suspect and there are fine variations in overtones.[18] Many a time the legality of the orders passed by courts directing the accused to furnish the sample of his or her voice as a part of the identification process has been challenged. This question particularly was dealt with by the Law Commission of India in its 87th Report[19] on the Identification of Prisoners Act, 1920[20] when on the realisation of the fact that there is no legal provision in Indian laws, the necessity to amend Section 5[21] of the Act of 1920 was suggested which would empower the courts to direct the accused to give a sample of his voice. The controversy was finally settled by the Supreme Court in Ritesh Sinha v. State of U.P.[22], invoking its plenary power under Article 142[23] of the Constitution of India through the process of judicial interpretation the court under the cover of Section 54-A of the Criminal Procedure Code, 1973[24] engrafted the power on the Magistrate to pass orders directing the voice samples to be furnished by the accused or the suspect whenever in the case, the witness is capable of confirming the identity of the accused on the basis of voice recognition[25].

  1. Test identification parade

One of the most popular and widely used methods of identification of witness is the identification parade. Test identification parade is one where the witness who claims to have seen the culprit at the time of occurrence is to identify the accused from the midst of suspects without any aid or other source. These are meant to test the veracity of the witness and the capability to identify unknown persons. Test identification parade should be conducted at the earliest possible so as to eliminate the chance of the accused being shown to witness prior to the identification parade which might otherwise affect the memory of the witness along with the credibility of the evidence to be sought.

Test identification parade belongs to the investigation stage and there is no provision in the Code of Criminal Procedure, 1973[26] under which the accused can claim it as a matter of right or makes it mandatory for the investigating officer or agency to hold an identification parade[27]. In Ramanathan v. State of T.N.[28] the Supreme Court explained the utility of the evidence created by test identification parade (TIP). The Court said that the purpose behind holding a test identification parade by placing suspects in a line up so that the witness of the incident could recall the features in sufficient details and to find out who is the perpetrator of the crime.

It is not a substantive piece of evidence rather is used for the purpose of corroboration and to strengthen the trustworthiness of substantive evidence of a witness in the Court[29].The parades come under the purview of Section 164[30] of the Code of Criminal Procedure, 1973[31].

Delay or failure in holding the TIP does not by itself render the evidence inadmissible or unacceptable but affects the credibility and weight attached to such identification[32]. The Supreme Court held that the identification by witness of the accused for the first time in the court is worthless till the time it is not tested prior by test identification parade[33]. But this view was changed later on in Ravi Kapur v. State of Rajasthan[34] it was held that court identification is itself a good identification in the eye of the law, it depends on the facts and circumstances of each case and is not necessary that it must be preceded by test identification parade.

Procedure for test identification which is generally followed is

  1. Test identification parade is conducted by the Magistrate.
  2. Such parades are conducted in special rooms with one side view glass where on one side of it the suspects are lined up and on the other side the witness and Magistrate.
  3. The witness and Magistrate must not be on the side where they are not visible to the suspects. The main reason behind this is the protection of the witness and also to avoid any kind of influence or threat which could compel the witness to make false identification.
  4. Also, the attire of the suspects must be changed every time a witness is called to identify the accused among them.
  5. The Magistrate must prepare, certify and carry multiple copies of TIP reports[35].

With the development of technology and sophisticated computer systems countries like Britain nowadays use VIPER (video identification parade electronic recording) as a replacement for live parades where a line up of 15-second clips are shown in a sequence which starts with the person’s front face and then slowly turning to show left and right profiles[36]. There is a dire necessity to introduce such a system in India as well.


Though there are many ways to set up accused identity, the admissibility and credibility of such identification evidence given by a witness need to be weighed, especially in cases where the case of prosecution solely depends on such identification evidence. Therefore these evidences are a paradox in themselves because the memory of the witness can be easily flawed due to factors like duress or stress after witnessing a crime, influence from accused, family or acquaintance, and lapse of time, etc. and this affects the quality and credibility of such evidences making them hopelessly unreliable. Research tells that the memory of the witness of the accused appearance may remain in short memory for a brief period of time which can be easily lost. Also, the chances of memory for face getting affected and altered are substantial, particularly in situations where the eyewitness receives any misleading information through any source. Therefore these evidences are merely corroborative and not substantive in nature because their credibility and accuracy remain in question which prevents them from being the sole basis of conviction of the accused. Still, the importance of the identification evidence given by witness cannot be ignored completely while adjudicating upon a case. Steps should be taken by the courts to understand the subjectivity of the question involved, carefully weigh the identification evidence and accordingly apply legal principles[37].

3rd year student, BA LLB, Delhi Metropolitan Education affiliated with GGSIP University, e-mail:

[1] Irshad v. State of Rajasthan, 2004 SCC OnLine Raj 474

[2] (2010) 2 SCC 748

[3] Prakash v. State of Karnataka, (2014) 12 SCC 133 : (2014) 6 SCC (Cri) 642

[4] Visveswaran v. State, (2003) 6 SCC 73 : 2003 SCC (Cri) 1270

[5] The Evidence Act, 1872, S. 9

[6] Shantanu Chakrak, S. 9 of the Evidence Act, 1872, Shareyouressays (25-3-2021, 12.02 a.m.), <>.)

[7] SRD Law Notes (22-3-2021, 16.00), <>.

[8] Tan Shoo May, Visual Identification: Recognition and Identification, Law of Evidence (23-3-2021, 11.10 a.m.), <>.

[9] Batuk Lal, The Law of Evidence, 129 (22nd Edn., Central Law Agency, 2018).

[10] Riya Sharma, The Eyewitness Enigma: A Paradox in the Law of Evidence, The Criminal Law Blog, National Law University, Jodhpur (23-3-2021, 17.31),  <>.

[11] Reg. v. Cook (Christopher), (1987) 2 WLR 775

[12] Siegen K. Chou, What is the Curve of Forgetting? 45(2) The American Journal of Psychology 348 (1933).

[13] (1987) 2 WLR 775

[14] Umar Abdul Sakoor Sorathia v. Narcotic Control Bureau, (2000) 1 SCC 138

[15] Laxmi Raj Shetty v. State of T.N., (1988) 3 SCC 319

[16] D. Gopalakrishnan v. Sadanand Naik, (2005) 1 SCC 85

[17] (2005) 1 SCC 85

[18] Dola v. State of Odisha, (2018) 18 SCC 695

[19] <>.

[20] Law Commission of India, 87th Report on the Identification of Prisoners Act, 1920,(1980) 

[21] <>.

[22] (2019) 8 SCC 1, para 27

[23] <>.

[24] <>.

[25] P.N. Prakash, Sanjay S. Jain and Sharath Chandran, The Legality of Voice Exemplars: An Opportunity Missed: Ritesh Sinha v. State of U.P., (2021) 1 SCC J-73 

[26] <>.

[27] Malkhansingh v. State of M.P., (2003) 5 SCC 746

[28] (1978) 3 SCC 86 at pp. 1211-1212

[29] Ram Babu v. State of U.P., (2010) 5 SCC 63; Vijay v. State of M.P., (2010) 8 SCC 191, 199

[30] <>.

[31] Sarvesh Kumar Shahi, Rules and Principles of Identification under Criminal Justice System, SCC OnLine (25-3-2021, 13.00), <>.

[32] Shyamal Ghosh v. State of W.B.,  (2012) 7 SCC 646

[33] V.C. Shukla v. State (Delhi Admn.), (1980) 2 SCC 665 at p. 1396

[34] (2012) 9 SCC 284

[35] Murugasamy v. State, 2017 SCC OnLine Mad 37658

[36] Sarvesh Kumar Shahi, Rules and Principles of Identification under Criminal Justice System, at p. 6, SCC OnLine (25-3-2021, 13.00), <>..

[37] Riya Sharma, The Eyewitness Enigma: A Paradox in the Law of Evidence, The Criminal Law Blog, National Law University, Jodhpur (23-3-2021, 17.31), at p. 3  <>.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of led by former CJI SA Bobde, along with AS Bopanna and V. Ramasubramanian, JJ has set aside the order of the Allahabad High Court granting bail to a gangster arrested under Section 3 (1) of the U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986

“There is no doubt that liberty is important, even that of a person charged with crime but it is important for the courts to recognise the potential threat to the life and liberty of victims/witnesses, if such accused is released on bail.”

Rajnarain Singh was murdered by the accused, a contract killer and a sharpshooter, in conspiracy with others. In fact, previously, the accused has been prosecuted in fifteen cases for serious offences including murder, attempt to murder and criminal conspiracy.

It was argued before the Supreme Court that the Allahabad High Court granted bail on very liberal terms, such as the execution of a personal bond to the satisfaction of the jail Authorities and the furnishing of sureties within a month of his release. “The High court has simply ignored the antecedents of the accused and the potential to repeat his acts by organising his criminal activities.”

The deceased victim’s wife also contended that the conduct of the accused during the trial has been one of non-cooperation, by not cross examining the witnesses first, then praying for their recall and then threatening witnesses through his henchmen. In fact, the conduct of the accused impelled the Sessions court to direct the police to provide security in the court during the trial and provide security to the witnesses.

Making a strong case, the appellant also argued that the grant of bail in a routine manner to gangsters, has had an adverse effect in the past, upon the law and order situation. The Court was reminded of the case where Vikas Dubey, who was prosecuted in connection with 64 criminal cases which included cases of murders, offences of dacoity, criminal intimidation, extortion and offences under the UP-Gangster Act, etc., was released on bail. Ultimately, when a police team went to apprehend him in a case, allegedly 8 policemen were killed and many grievously injured.

Taking note of all the factors concerned, the Court said that the high court has overlooked several aspects, such as the potential threat to witnesses, forcing the trial court to grant protection.

“It is needless to point out that in cases of this nature, it is important that courts do not enlarge an accused on bail with a blinkered vision by just taking into account only the parties before them and the incident in question. It is necessary for courts to consider the impact that release of such persons on bail will have on the witnesses yet to be examined and the innocent members of the family of the victim who might be the next victims.”

[Sudha Singh v. State of Uttar Pradesh, 2021 SCC OnLine SC 342, decided on 23.04.2021]

Case BriefsSupreme Court

Supreme Court: The bench of Surya Kant and Aniruddha Bose, JJ has held that the strict principles of evidence and standards of proof like in a criminal trial are inapplicable in Motor Accident Claims cases.

“The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true.”

The Court was hearing the case relating to an accident resulting into the death of a 34-year-old man named Sandeep who was survived by his wife widow, two minor children and a mother; all of whom were dependent on him. His dependents had claimed Rs 60,94,000 as compensation alleging, inter alia, that Sandeep died as a result of the injuries suffered in the abovementioned accident of 25.03.2009, which occurred due to the rash and negligent driving of one Sanjeev Kapoor, the owner­cum-driverof the car in which Sandeep was travelling.

Sanjeev disowned responsibility for the accident by asserting that it was the truck which was coming from the opposite side at a very fast speed, and was being driven in a rash and negligent manner.

According to an eyewitness, however, Sanjeev was driving the car at a very fast speed when it overtook a vehicle and collided head­on against the oncoming truck. The Credibility of the eyewitness was questioned.

Noticing that the eyewitness had, acting as a good samaritan and a responsible citizen, taken the injured persons to the hospital, the Court said that it is commonplace for most people to be hesitant about being involved in legal proceedings and they therefore do not volunteer to become witnesses. Hence, it is highly likely that the name of Ritesh Pandey or other persons who accompanied the injured to the hospital did not find mention in the medical record. There is nothing on record to suggest that the police reached the site of the accident or carried the injured to the hospital.

“Without any personal interest or motive, he assisted both the deceased by taking him to the hospital and later his family by expending time and effort to depose before the Tribunal.”

Further, it is quite natural that such a person who had accompanied the injured to the hospital for immediate medical aid, could not have simultaneously gone to the police station to lodge the FIR. Hence, the High Court ought not to have drawn any adverse inference against the witness for his failure to report the matter to Police especially when the police had themselves reached the hospital upon having received information about the accident.

Not impressed with the way the High Court had approached the matter, the Court said,

“Unfortunately, the approach of the High Court was not sensitive enough to appreciate the turn of events at the spot, or the appellant-claimants’ hardship in tracing witnesses and collecting information for an accident which took place many hundreds of kilometers away in an altogether different State.”

[Anita Sharma v. New India Assurance Co. Ltd., 2020 SCC OnLine SC 1002, decided on 08.12.2020]

Case BriefsHigh Courts

Delhi High Court: While deciding the instant matter which revolved around the interplay and interpretation of Sections 306 and 308 of the CrPC, C. Hari Shankar, J., observed that pardoning an accomplice under Section 306 (1) CrPC, and his conversion into an approver, must mandatorily be followed by his examination as a witness under Section 306 (4) of CrPC. However, during the course of such statement, if the Public Prosecutor is able to discern that the approver is not abiding by the conditions, subject to which pardon was tendered to him, i.e. making a full and true disclosure of all facts within his knowledge; or the approver is concealing something essential; or is tendering false evidence, then the Public Prosecutor would so certify under Section 308 (1) of CrPC.

As per the facts, a case was registered against the respondent under various provisions of IPC and Prevention of Money Laundering Act, 2002. The respondent filed application under Section 306 of CrPC, for grant of pardon, which was allowed by the Special Judge, CBI. Later on the petitioner (Directorate of Enforcement) moved an application for revocation of the pardon. However, the Special Judge, in his Order dated 05-03-2020, disposed off the application moved by the petitioner on the ground that the application is premature and there is no merit in the interpretation of Sections 306 and 308 implying that pardon granted to any person can be revoked at any stage, even before the approver is examined before Session Court/Trial Court. The ED therefore challenged the impugned Order in the instant case. Appearing on behalf of the petitioners, Aman Lekhi, ASG, contended that the Special Judge has misconstrued the scheme of Sections 306 and 308 of CrPC and has erred fundamentally in holding that the statement of the approver is required to be recorded, before deciding on the issue of revocation of the pardon extended to him. R.K. Handoo on behalf of the respondent submitted that at the first instance, the application of the petitioner, before the learned Special Judge, was itself not maintainable, as the CrPC does not contemplate revocation of pardon tendered to an accused; pardon, once granted cannot be revoked, cancelled or withdrawn.

Perusing the rival contentions and referring to various Supreme Court decisions, especially State v. Jagjit Singh, 1989 Supp (2) SCC 770 and Bipin Behari Sarkar v. State of West Bengal, AIR 1959 SC 13, the Court observed that examination of the approver, as a witness under Section 306 (4) is intended, inter alia to ascertain whether the approver is abiding by the conditions of his pardon, or is an untrustworthy witness. It was further observed that a holistic and conjoint reading of Sections 306 and 308 reveals an “inexorable sequence”, in which the most mandatory step is the examination, of the approver, as a witness, under Section 306 (4).

The Court therefore observed that ex facie, the view adopted by the Special Judge in the impugned order is in sync with the law laid down in multiple Supreme Court decisions and as well as the statutory scheme of Sections 306 and 308 of the CrPC, and does not merit any interference. Thus endorsing the view expressed by the Special Judge, the Bench therefore decided to dismiss the instant petition. [Directorate of Enforcement v. Rajiv Saxena, 2020 SCC OnLine Del 719 , decided on 08-06-2020]

Case BriefsHigh Courts

Calcutta High Court: Rajasekhar Mantha, J., has referred to three important questions, which in the Court’s opinion are required to be settled by an appropriate larger bench.

In the instant case, the Investigating Officer (“IO”) had prayed for a voice sample of the petitioner to enable FSL experts to compare the same with certain evidence that was already in custody of the IO. The Magistrate has allowed the IO’s prayer and directed the petitioner to provide a voice sample before the FSL expert. Aggrieved thereby, the petitioner filed the instant revision.

Notably, the petitioner was not named as accused in the FIR and the investigation was still on.

The petitioner argued that as the law presently stands, a witness cannot be compelled to give a voice sample. Per contra, the State relied on the decision of the Supreme Court in Ritesh Sinha v. State of U.P., (2019) 8 SCC 1, to contend that if an accused can be compelled to give voice sample, as held in the said case, then a witness who is not an accused, at an investigation, can be definitely asked to give voice sample.

Considering the submissions of the parties, the High Court was of the view that the following questions require to be settled by an appropriate larger Bench:

“(a) Whether Section 311-A read with Section 53 and 53-A CrPC along with Section 5 of the Identification of Prisoners Act, 1920, empowers a Magistrate to compel a witness in course of investigation into an FIR, to give voice sample in the aid of such investigation?”

(b)Can the principle laid down by the Supreme Court in the Ritesh Sinha v. State of U.P. be applied also to witnesses in course of investigation?

(c)Whether a witness even in course of an investigation can be compelled to give evidence, that could subsequently emerge as a ground for including him as an accused in the final investigation report?”

The High Court directed the matter to be placed before the Chief Justice for reference to an appropriate Bench.

In the meantime, however, the petitioner was ordered to give voice samples to the IO in the presence of the FSL expert. It was directed that the said sample shall be kept sealed and unopened, and the parties shall abide by the result of the reference proposed. [Mukul Roy v. State of W.B., 2019 SCC OnLine Cal 4341, decided on 12-12-2019]

Case BriefsHigh Courts

Delhi High Court: V. Kameswara Rao, J., dismissed the present petition in respect to the appearance of Nitish Kumar, Chief Minister of Bihar, as a witness in the copyright infringement matter regarding the violation to authorship rights of the literary work titled as “Special Category Status: A Case for Bihar”.

Facts leading to contentions stated below

Plaintiff was a Senior Research Scholar pursuing his Ph.D. programme in Economics at Jawaharlal Nehru University. Plaintiff registered for his Ph.D. in July 2006 after successfully completing his Masters in Arts and M.Phil. Topic of his thesis was “Role of State in Economic Transformation: A case study of Contemporary Bihar”.

Defendant 2 came to know about plaintiff’s research work through plaintiff’s guide and when the plaintiff was in Bihar for his research work, defendant 2 approached the plaintiff and made a request that while doing his own survey, if the plaintiff could fill up certain additional forms relating to “Bihar State Land Reform Commission’s research work” then in return the defendant 2 would take care of the expenses of plaintiff’s field work on actual basis.

Defendant 2 being aware of the plaintiff’s research area, suggested to the plaintiff that his personal research could be used for supporting the cause of Bihar and requested the plaintiff to give his study/research material which would be used to support the PIL pending in the Patna High Court.

Trusting defendant 2 and in the larger public interest, the plaintiff gave his research work in soft copy to defendant 2.

Later, when the plaintiff was in Delhi, he was shocked by reading newspaper reports wherein it was stated that “the original work of the plaintiff” viz. “Special Category Status: A Case for Bihar” was being published by ADRI and the Centre for Economic Policy and Public Finance as a book authored by Bihar Chief Minister, Nitish Kumar.


Plaintiff submits that witness 1 in Part C of his list of witnesses which was also served to the defendants was Nitish Kumar, present Chief Minister of Bihar. He is also defendant 1 in the present suit.

According to the plaintiff, the said witness is significant and will have a material impact in establishing the case of the plaintiff with regard to the violation to authorship rights of the literary work titled as “Special Category Status: A Case for Bihar” in which the defendant 1 is the principal actor.

Plaintiff further submits that though the witness is also defendant 1, there is no bar under the CPC to examine the opposite party as his own witness, more particularly when defendant 1 is included in the list of witnesses.

Senior Counsel, P.D. Gupta representing defendant 1, opposed the prayer on the ground that application preferred by the plaintiff is barred by limitation under Order 16 Rule 1 itself. He also submitted that the present application is an abuse of process inasmuch as Nitish Kumar/defendant 1 can be cross-examined by the plaintiff at his evidence stage.

Cases relied on by the plaintiff in support of his contentions

Plaintiff by contending that there is no bar on the right of a party to summon or examine another party including the opposite party to give evidence as his witness under CPC, had relied upon a judgment of the Karnataka High Court in the case of Syed Yasin v. Syed Shaha Mohd. Hussain, AIR 1967 KANT 37.

Plaintiff, along with a list of cases, relied on a Supreme Court Judgment in Kokkanda B. Poondacha v. K.D. Ganapathi, (2011) 12 SCC 600, wherein it was held that,

 “oblique motives of parties should be looked into by the Court while deciding application for summoning of witnesses under Order 16 Rule 1.”

Karnataka High Court Judgment in Krithi Constructions v. K. Thippa Reddy, ILR 20156 Kar 122, was also relied on, in which it was held that,

“Though it is true that the party to the suit can examine another party to the suit as a witness, such procedure has to be permitted in rarest of rare cases”

High Court’s analysis and observation

Court noted that the dispute in the suit is whether the defendants have violated the copyright in the original work of the plaintiff. The witness Nitish Kumar is defendant 1 in the case. Issues that were framed in the suit were:

  1. Whether the plaintiff is the owner of the copyright in the work “Special Category Status: A Case for Bihar” and if so, whether the defendants are infringing the copyright of the plaintiff?
  2. Whether the plaintiff is entitled to damages, if so, of what amount? 3.
  3. Whether the work “Special Category Status: A Case for Bihar is a Government publication of the defendant no. 4 and accordingly whether the defendant no. 4 is entitled to relief filed in its counter claim against the plaintiff?
  4. Relief

The Court stated that it is clear from the facts and circumstances of the case that on Issue 1, the onus is on the plaintiff to prove that he is the owner of the copyright. Vide the written statements the defendants are contesting the said position and the stand is at variance.

It was further stated that,

Each of the parties shall have to enter the witness box to prove his case. The opposite party shall naturally cross-examine the party in the witness box. So it follows, that defendant 1, coming as a witness, shall in his evidence make good the stand taken by him in his written statement. He shall not prove the case of the plaintiff.

Thus the reasoning of the plaintiff calling defendant 1 as a plaintiff’s witness being so-called “principal actor” and a bona fide act is not convincing.

Hence in the Court’s opinion, the present application was filed only to put pressure on the Chief Minister of State of Bihar as he was being summoned, not in the normal course, but as plaintiff witness without cogent reason as such is not bona fide nor in the interest of justice.

In the above view, the present application has been dismissed. [Atul Kumar Singh v. Nitish Kumar, 2019 SCC OnLine Del 11084, decided on 13-11-2019]

Case BriefsHigh Courts

Bombay High Court: Sadhana S. Jadhav, J. allowed an appeal filed against the decision of the trial court whereby the appellant was convicted for offences punishable under Section 376 IPC (punishment for rape) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (punishment for penetrative sexual assault).

The appellant was accused of committing rape upon the prosecutrix on pretext of marriage. He was tried and convicted by the trial court as aforesaid.

Arjun Rajput, counsel for the appellant assailed the judgment of the trial court. Per contra, S.S. Pednekar, Assistant Public Prosecutor appearing for the State supported the impugned judgment.

The High Court noted that evidence of the prosecutrix, on which appellant’s conviction was primarily based, did not inspire confidence. Also, several witnesses turned hostile. The Court stated, “witness may lie, but the circumstances will not lie.” As per the FIR, the appellant and prosecutrix had already made a plan to go out on the day of the alleged incident. It was observed, “The papers of investigation would indicate that the appellant was in love with the prosecutrix and that has led to initiation of criminal prosecution. The parents of the prosecutrix and that has led to initiation of criminal prosecution. The fact that the prosecutrix had voluntarily missed the classes and decided to accompany him would be sufficient to indicate that she was not forced to accompany the appellant.”

The Court noted further, “The appellant seemed to be so frustrated with the criminal prosecution that he made no efforts even to defend himself. In his statement under Section 313 CrPC he has only stated that he does not wish to speak about the incident. The papers of investigation would further indicate that the appellant felt betrayed by the prosecutrix. That it was a love affair between two youngsters, which had landed in criminal prosecution of a young boy.”

In such circumstances, the Court allowed the appeal and set aside the conviction and sentence awarded to the appellant by the trial court. [Gorakshya Arjun Mahakal v. State of Maharashtra, 2019 SCC OnLine Bom 520, dated 13-03-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of S.B. Shukre and S.M. Modak, JJ. allowed a set of criminal appeals filed against the judgment of Sessions Judge whereby the appellants were convicted under Section 376 (2)(n) IPC and under various sections of Protection of Children from Sexual Offences Act, 2012 and Prohibition of Child Marriage Act, 2006.

The appellants were the husband, parents, neighbours, etc. of the victim. The prosecution alleged that the victim was married to her husband when she was 15 years of age. She was pressurised by her parents. Soon after the wedding, the husband consummated the marriage with the victim. She was not able to resist the advances and acts of the husband who was 29 years of age. One day, on the pretext of celebrating he birthday with her parents, the victim ran away and lodged an FIR against the husband, her parents and other accused. The matter went to trial and the court convicted the accused as aforesaid. Aggrieved thereby, the convicts preferred the present appeals.

Mahesh Rai and A.A. Dhawas, Advocates for the appellants vehemently argued against the conviction and seriously disputed age of the victim at the time of the incident. They relied on evidence of one Vasanti, an employee of Municipal Council, Chandrapur. Notably, Vasanti was a prosecution witness but her evidence wherein she brought birth register proved that the victim was born in 1994 and not in 1999 as claimed by the prosecution. Thus, at the relevant time, the victim was more than 18 years of age. Therefore she could not be treated as a ‘child’ for the purpose of either POCSO or the Child Marriage Act.

The High Court, noting the above evidence stated that the same was reliable. It observed, “After having examined its own witness and after having not declared the witness with the permission of the Court as hostile to the prosecution, it is not permissible under the law for the prosecution to disown its own witness”. On the aspect of other evidence especially the ossification test, the Court relied on Mahadeo v. State of Maharashtra, (2013) 14 SCC 637 and State of M.P. v. Anoop Singh, (2015) 7 SCC 773. The Court stated, “The ossification test would come into picture only when the documentary and other evidence brought on record by the prosecution does not convincingly or beyond reasonable doubt establish the age of the victim, wherever it is relevant”. Thus, the victim not being a ‘child’ at the relevant time, the appellants were acquitted of offences under POCSO and Child Marriage Act. Further, regarding Section 376(2)(n) IPC, it was noted that the victim admitted that after the marriage she did not object to the acts of the husband and therefore even that offence was not established. Hence, the appellants were acquitted of all the charges. [Vimalbai Manohar Doballiwar v. State of Maharashtra, 2018 SCC OnLine Bom 6956, dated 19-12-2018]

Case BriefsHigh Courts

Kerala High Court: A Single judge bench comprising of Alexander Thomas, J. allowed a petition seeking mandamus against Marriage Registrar and directed him to correct errors in petitioner’s marriage certificate in the presence of two witnesses and a signed declaration of his wife expressing her consent thereto.

The petitioner’s wife was employed in USA and he had to submit his papers before the immigration authorities who advised him that the name in his marriage certificate should be the same as in his birth certificate and passport. In order to correct his name as contained in his marriage certificate, the petitioner submitted an application before Marriage Registrar under Section 49 of the Special Marriage Act, 1954 which stipulates correction of erroneous entries in a marriage certificate to be made in the presence of persons married.

The petitioner submitted that his wife was residing in USA and it was not practically feasible for her to come down to Kerala only for the purpose of taking action in relation to his application. It was averred that Section 49(1) permits taking of action for correction of erroneous entries even in the absence of the parties, in the presence of two other credible witnesses.

In view of the above, the High Court held that in case the petitioner’s wife cannot come over to Kerala, then a declaration signed by her may be submitted before the

Marriage Registrar stating that she fully concurs with the petitioner’s for correction of entries in their marriage certificate. Further, it should be ensured that two credible witnesses, preferably parents of the petitioner or that of his wife or any other responsible relatives in their family be present before the Marriage Registrar for effectuating action as envisaged in Section 49(1) of the Act.

Accordingly, a mandamus was issued to the respondent directing consideration of the petitioner’s request.[Rinilraj Raju v. Department of Registration, 2018 SCC OnLine Ker 4895, decided on 31-10-2018]


Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sanjeev Sachdeva, J.allowed a criminal revision petition filed against the judgment of the Appellate Court whereby it confirmed the order of conviction under Section 304-A and 279 IPC passed by the trial court against the petitioner while reducing the sentence therefor.

The petitioner was accused of causing death of the deceased due to his rash and negligent driving. On the fateful night, according to the witnesses, the petitioner was driving his vehicle at a high speed which hit the deceased who was crossing the road. As a consequence, the deceased succumbed to the injuries sustained. The petitioner was charged, tried and convicted by the trial court under the aforementioned sections. He challenged the said order before the Appellate Authority which, while reducing the sentence imposed, confirmed the order of conviction. Aggrieved thereby, the petitioner preferred the instant petition.

The High Court, after perusal of the record, noted that the prosecution mainly relied on witness testimonies. referring to earlier decisions, the Court observed that the witnesses can no doubt depose as to the manner of driving or speed of the vehicle; however, they cannot render an opinion as to rashness and negligence. It was further noted that there was no evidence to prove whether the vehicle was being driven in a manner which may be construed as rash and negligent by the court. It was held that high speed, by itself, in every case, cannot be a sufficient criterion to bring home guilt of the driver for rash and negligent driving. There was no evidence as to skid marks, type of injuries sustainedly the deceased, etc. In such circumstances, the Court gave benefit of the doubt to the petitioner and acquitted him of all the charges. The petition was allowed and the order impugned was set aside. [Kishore Chand Joshi v. State,2018 SCC OnLine Del 12337, decided on 12-11-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Sarang V. Kotwal, JJ. dismissed an appeal filed against the judgment of the trial court whereby the appellant was convicted for the offence punishable under Section 302 IPC.

The appellant was convicted for the murder of his son. On the fateful day of the incident, wife of the appellant came back home from selling fish and saw that her husband and her son were quarreling as the husband had given the food meant for her, to some other person. Later, the convict and his wife went to sleep on the mezzanine floor of the house while the son was sleeping on the ground floor. The wife woke up on hearing the cries of his son, she ran to the ground floor and saw that her husband was assaulting her son with an iron rod which resulted in death of the son. When the wife tried to stop the appellant, she too was hit by the rod. The appellant threatened her not to tell this to anybody or else she had to face consequences. Subsequently, an FIR was registered and the appellant was convicted by the trial court under Section 302. Aggrieved thereby, the appellant preferred the instant appeal.

The High Court noted that the wife (PW 1) was the star witness in the case. No doubt, in her testimony, she did not fully support the prosecution case. However, the Court observed, that it is a well settled position of law that such part of the evidence of a hostile witness which is found to be trustworthy van always be taken into consideration. In the instant case, PW 1 had supported the prosecution case with regard to earlier incidents of quarrel, she and the appellant going to mezzanine floor. Her evidence of seeing the appellant with iron rod standing near the deceased had gone unchallenged, which was also corroborated by her sister and niece who came running to the house hearing the cries of PW 1. Furthermore, the burden under Section 106 of the Evidence Act shifted on the appellant to prove that how the injuries were sustained by the deceased. The explanation given by the appellant that the deceased fell from the mezzanine floor and thereby sustained injuries were found to be false in light of the evidence of medical expert. In such circumstances, the Court dismissed the appeal. [Babubhai Laxman Bhamaniya v. State of Maharashtra,2018 SCC OnLine Bom 2634, dated 09-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S. Sistani and C. Hari Shankar, JJ. dismissed an appeal filed by the appellant-husband against the order of the family court whereby it granted a decree of divorce in favour of the respondent-wife.

It was contended by appellant that he wasn’t given the opportunity to recall PW 1 for fresh cross-examination as the evidence recorded by the family court was self-destructive attributable to unprofessional approach of the earlier counsel for the appellant. The appellant had filed an application under Section 151 read with Order 18 Rule 17 CPC which was dismissed as withdrawn. The present appeal was filed under Section 19 of the Family Courts Act, 1984.

The High Court considered the submissions made by the parties. It referred to Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410 and K.K. Velusamy v. N. Palanisamy(2011) 11 SCC 275. The Court observed that Order 18 Rule 17 CPC is to be exercised sparingly. The provision is not intended to enable the parties to recall any witness for further examination. It is primarily to enable the Court to clarify any issue or doubt by recalling any witness either suo motu or on application of any party so that the Court can itself put questions and elicit answers. Moreover, in the present case, the application filed by the appellant was withdrawn when it came up for hearing. Once the application was dismissed as withdrawn, the appellant could not complain that he wasn’t given the opportunity to re-examine the witness. In such circumstances, the appeal was dismissed. [Rajiv Mehta v. Savita Mehta,2018 SCC OnLine Del 10936, dated 20-08-2018]

Op EdsOP. ED.

Rule 13 of Chapter II of Part VI of the Bar Council of India Rules under the Advocates Act, 1961 specifically state that:

  1. An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness, and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate if he can retire without jeopardising his client’s interests.

Section 120 of the Evidence Act, 1872 only deals with who may testify as a witness and does not lay down any restriction or restraint on the advocate to be a witness in the case where he is acting as an advocate. A counsel for a party should not be his witness in the same case without retiring from the case as counsel. It is a sound principle that a person who is appearing as counsel should not give evidence as witness.

If, however, in the course of proceedings it is discovered that the advocate is in a position to give evidence and it is desirable that he should do so, his proper course is to retire from the case in his professional capacity. Failure to do the same would amount to professional misconduct under Section 35 of the Advocates Act, 1961. However, if the advocate knew or had reason to believe since the very beginning that he will be an important witness in the case, he has a choice either to appear as a witness or to appear as an advocate. Once he exercises the said choice and chooses to be an advocate in the case, then he cannot be examined as a witness on behalf of the opposite side by retiring from the suit at a subsequent stage.

It is against the etiquette of the Bar that a member of the profession should give evidence in the case in which he is engaged as counsel and no self-respecting counsel would be prepared to conduct a case for the defence after having been called as a witness for the prosecution. However, a practitioner, who is acting on behalf of one of the parties and conducting litigation for him is debarred under Section 126 of the Evidence Act, 1872 to disclose the communications made to him without the express consent of his client.

If, however, a court comes to the conclusion that a trial will be embarrassed by the appearance of an advocate who has been called as witness by the other side, and if, notwithstanding the court’s expression of its opinion, the advocate refuses to withdraw, in such a case, the court has inherent jurisdiction to require the advocate to withdraw. Nevertheless, a counsel is not incompetent to give evidence whether the facts to which he testifies occurred before or after his retainer. It should be noted that merely because the name of an advocate appears in the list of witnesses of opposite party, his vakalatnama does not automatically get relinquished.

However, recently in Kokkanda B. Poondacha v. K.D. Ganapathi[1] the Supreme Court has held that one of the parties in a suit cannot cite the advocate representing the other side as a witness in the list without indicating the purpose for the same. This will ensure that the other side is not deprived of the services of the advocate on frivolous grounds.


Therefore, in light of the above, an advocate can appear as witness in certain instances. However, it should be noted that an accused is entitled to be defended by a counsel of his choice and the prosecution cannot fetter that choice merely by serving subpoena on the advocate to appear as a witness. Furthermore, the Court is also bound to see that the due administration of justice is not, in any way, embarrassed by permitting the advocate to appear as witness.


* Associate, Khaitan & Co., New Delhi, email –

[1]  (2011) 12 SCC 600.

Case BriefsHigh Courts

Punjab and Haryana High Court: The High Court of Punjab and Haryana decided on the matter arising before it from a civil suit pending before the Court of Civil Judge (Junior Division), Samrala, the issue whether Sucha Singh (petitioner witness), who was residing at USA, can be allowed to be examined by way of Video Conferencing.

The Court vide order dated 16.10.2015 passed in CR 6571 of 2014 allowed the same stating that the witness can be confronted with the documents with close proximity to the camera. Petitioner was given liberty to choose a public authority where such facility was available and inform the Court. Alternatively, the petitioner was given option to identify the Indian Consulate in the nearest place from his residence and produce the Court order to secure the permission for hearing. The petitioner was to make himself available during the court working hours in India and give a date which is mutually convenient to the Court and the Consulate or the Public Office.

The Court was of the view that the evidence of the petitioner was very material and therefore his evidence was required to be recorded. However, noticing the difference of time between India and USA, the Court was of the opinion that approaching the Public Authority at night time to allow video conferencing facility was unfeasible. The Court opined that as video conferencing is now available through many applications like Facetime, Whatsapp, Skype etc. there is no necessity of approaching the nearest Consulate.

The Court allowed examination of the petitioner by way of video conferencing through Mobile or Computer on an application, and the time and date of the same would be communicated to the trail court. The witness is to be identified by the opposite party or any other person nominated by them. The Court further ordered supply of photocopy of any document which is sought to be put to the witness in advance to the opposite party and witness himself, so that he may answer on the said document. [Sucha Singh v. Ajmer Singh, 2018 SCC OnLine P&H 637, order dated 17-05-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Ramendra Jain, J., allowed recalling and re-examination of prosecution witness no. 6 (PW 6)- handwriting expert.

In the matter at hand, a question arose as to the veracity of signatures of the attesting witness to the Will in question. To prove the veracity of signatures, handwriting expert (PW 6) was called. However, he gave his report regarding only one out of two signatures of the attesting witness to the Will. The petitioner prayed for recalling the said witness for re-examination, which was disallowed by the trial court. That decision was challenged in the instant revision.

The High Court found merit in the revision for the simple reason that there was an inadvertence on the part of PW 6 in giving report only in respect of one out of two signatures of the attesting witness. The Court held, ‘no litigant should be non-suited on account of inadvertent lapse of the witness’. Further, recalling and re-examination of PW 6 would neither change nature of the suit nor cause any prejudice to the opposite side. In view of the above, the revision was allowed and re-examination of PW 6 was directed. [Ram Lal v. Lakhbir Singh,2018 SCC OnLine P&H 622, dated 01-03-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Mukta Gupta and Navin Chawla, JJ. partly allowed an appeal, modifying the appellant’s conviction under Section 302 to Section 304 Pt. II IPC, consequently, reducing the sentence thereunder from life imprisonment to RI for 7 years while upholding the conviction and sentence under Section 25 of the Arms Act.

The brief facts of the case are that at around 9:00 p.m. on 07.03.2012, the deceased was allegedly stabbed by the appellant following a quarrel between them. Harish (PW 4), was the sole witness to the crime, while Ashok (PW 5) And Charan Pal (PW 6) had arrived shortly after the occurrence. The deceased was taken to the hospital by the trio where he was declared ‘brought dead’. PW 4 deposed that he had been taking a walk after a meal and upon reaching the 19 Block Chowk near a shop, he saw the appellant and deceased quarrelling, soon after which, the appellant raised a knife and stabbed the deceased on the chest. The resulting commotion caused the public to assemble near the crime scene, among which PW 5 and PW 6 were also present. They deposed to seeing the deceased lying in a pool of blood and also deposed to PW 4 being present there. The appellant was arrested soon after and he disclosed the location of a knife which was recovered soon after. The FSL report opined that the injury was ante-mortem, sufficient in the ordinary course to cause death, and was delivered by a single-edged sharp weapon, which could have been the recovered knife. The blood stains on the clothes of the witnesses matched with the blood of the deceased, also there was enough evidence at the crime scene to tie the occurrence to that particular place.

The appellant argued that the prosecution did not put forward any other eye witnesses except PW 4, whose deposition cannot be relied upon as he is an uncle of the deceased and hence, an interested witness. The Court rejected this argument, stating that there was nothing in PW 4’s deposition which could be doubted upon. He lived in the vicinity of the crime scene, and was out for a walk at 9:00 p.m.. Further, no reason was put forth suggesting that PW 4 would falsely implicate the appellant.

The Court relied on the Supreme Court judgment of State of A.P. v. S. Rayappa(2006) 4 SCC 512 while rejecting this contention, where the Supreme Court had elaborately stated that a testimony of witness inspiring confidence cannot be discarded on the sole ground that he, being, a relative of the deceased is an interested witness. The term ‘interested’ postulates that the person concerned must have some direct interest in seeing the accused person being convicted, either because of animosity or some other reason. The Court had further observed that it has become increasingly difficult to have witnesses depose before the Court because of various reasons including harassment and intimidation, as a result of which, criminal cases are being dragged on for years. The Supreme Court had opined that in such circumstances the only natural witness available to the prosecution would be a relative of the deceased. The Supreme Court had also shed light on the mindset of such witnesses, stating that witnesses who are related to the deceased would, in all probability, depose in such a way so as to implicate the real culprit so that the guilty is punished. The only catch being that related witnesses are to be examined cautiously.

The Court, however, agreed to the argument that there was no pre-meditation on part of the appellant and the case fell under Exception 4 to Section 300 IPC. Appeal partly allowed. Sentence modified. [Deepu v. State,  2017 SCC OnLine Del 12402, decided on 16.12.2017]

Case BriefsHigh Courts

Kerala High Court: While deciding upon the issue that whether the lawyer who is appearing for a party can be removed at the request of the opposite party, the Division Bench of A.M. Shaffique and K.Ramakrishnan, JJ., observed that two major conditions must be satisfied in order to direct the removal of a lawyer appearing for a party, they are namely; that the direction to relinquish the ‘vakalath’ by the counsel appearing should not jeopardize the interest of the party for whom he appears, and secondly the examination of the Advocate as a witness is indispensable and that the disengagement would not jeopardize the interest of the party for whom he appears.

In the instant case, the petitioner cited the terms of Rule 6 of the Bar Council of India Rules, and prayed before the Court to prohibit the respondent’s Advocate to appear on behalf of his party for the case because as per Rule 6 if any member thereof is related to the Advocate or comes within the relationships mentioned in the Rule, then such Advocate shall be forbidden to appear on behalf of his party. The petitioner further contended that he intendeds to examine the Advocate of the respondent as a witness.

Perusing the contentions, the Court observed that the petitioner had not mentioned any list citing the respondent Advocate as a witness, and moreover if the counsel is directed to relinquish the ‘vakalath’ it will jeopardize the interest of the respondent. [Kabeer v. Nazrin, 2017 SCC OnLine Ker 41,  decided on 05.01.2017]

Case BriefsSupreme Court

Supreme Court: In the matter where the accused persons has sought for recall of the witnesses under Section 311 read with Section 231(2) CrPC on the ground of illness of the counsel, the Bench of Dipak Misra and U.U. Lalit, JJ held that recalling of witnesses as envisaged under the said statutory provision on the grounds that accused persons are in custody, the prosecution was allowed to recall some of its witnesses earlier, the counsel was ill and magnanimity commands fairness should be shown, are not acceptable in the obtaining factual matrix. considering the fact that a number of counsels were engaged by the defence, the Court held that in such a situation recalling of witnesses indubitably cannot form the foundation. If it is accepted as a ground, there would be possibility of a retrial. There may be an occasion when such a ground may weigh with the court, but definitely the instant case does not arouse the judicial conscience within the established norms of Section 311 CrPC for exercise of such jurisdiction.

Referring to a series of decisions where it was held that a liberal approach needs to be followed while allowing the recall of witnessed, the Court said that the decisions which have used the words that the court should be magnanimous, needless to give special emphasis, did not mean to convey individual generosity or magnanimity which is founded on any kind of fanciful notion. It has to be applied on the basis of judicially established and accepted principles. The approach may be liberal but that does not necessarily mean “the liberal approach” shall be the rule and all other parameters shall become exceptions. Recall of some witnesses by the prosecution at one point of time, can never be ground to entertain a petition by the defence though no acceptable ground is made out. It is not an arithmetical distribution. This kind of reasoning can be dangerous.

The Court further said that a criminal trial does not singularly centres around the accused. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels which is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and the agonies, for the society seeks justice. Therefore, a balance has to be struck.

In the case at hand, the prosecution had examined all the witnesses. The statements of all the accused persons, i.e. 148 in number, had been recorded under Section 313 CrPC and the defence had examined 15 witnesses. Taking note of these facts, the Court said that the foundation for recall, as is evincible from the applications filed, does not even remotely make out a case that such recalling is necessary for just decision of the case or to arrive at the truth. [State of Haryana v. Ram Mehar2016 SCC OnLine SC 857, decided on 24.08.2016]

Case BriefsHigh Courts

Delhi High Court: Disposing of an appeal where the appellant was convicted for the offence under Section 9(k) of the Protection of Childen from Sexual Offences Act, 2012 for aggravated sexual assault of a deaf and dumb minor, and awarded rigorous imprisonment for six years with fine of Rs 5000, the Bench of Mukta Gupta, J. held that though charged with a major offence an accused can be convicted for a minor offence, however, the vice-versa is impermissible.
Though the appellant was charged under Section 7 of the POCSO Act for sexual assault punishable under Section 8 wherein the minimum punishment is 3 years extending to 5 years with fine, he was convicted under Section 9(k) for aggravated sexual assault. The appellant had contented that since the prosecutrix, who was deaf and dumb, could not be cross-examined, her testimony cannot be read in evidence and even if the offence is proved against the appellant, the same would fall under Section 7 punishable under Section 8 and not under Section 9(k) punishable under Section 10 of the POCSO Act.
Relying upon State of Rajasthan v. Darshan Singh, (2012) 5 SCC 789 that Section 119 of the Evidence Act provides that a witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, the Court observed that the prosecutrix had explained the incident through her drawings and through gestures to her mother for the purpose of cross-examination. The Court observed that the purpose of cross-examination is to ascertain the truth in relation to the accusation levelled against an acused and discretion vests in the court to control the cross-examination. A party cross-examining a deaf and dumb witness like any other witness is required to act within the bounds of law and cannot be permitted to cross-examine the witness all and sundry on irrelevant questions. It is the duty of a Judge to control the cross-examination to prevent any abuse and to protect a witness from being unfairly dealt with. Sections 149 to 152 of the Evidence Act prohibited questions without reasonable grounds and Section 138 provides that cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief.
The Court observed that “When a deaf and dumb witness is under cross-examination, the Court is required to take due care of the fact that vocabulary of such a person is limited as he or she speaks through sign language and it may not be possible for that witness to answer, or in detail explain every answer by sign language. This disability of a limited vocabulary of sign language does not affect either the competence or the credibility of such witness. The Court is required to exercise control over the cross-examination keeping in view the ability of the witness to answer the questions.”
As for the nature of the offence, the Court observed that in the facts of the case it is not required to go into whether aggravated sexual assault is made out or not from the evidence on record, for the reason there was no charge for aggravated sexual assault framed against the appellant. It is trite law that though charged with a major offence an accused can be convicted for a minor offence, however the vice-versa is impermissible, which has been done by the trial court. Observing that the conduct of the appellant in sexually assaulting a deaf and dumb girl who was not in a position to protect herself fully warranted maximum punishment, the conviction was altered to one for the offence under Section 7 and punishable under Section 8 and the order on sentence was modified to rigorous imprisonment for 5 years with fine of Rs 10,000. [Chander Singh v. State, 2016 SCC OnLine Del 3574, decided on 03.06.2016]