TMI Blog1995 (3) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... other girl about 3 days prior to the occurrence. The appellant suspected that Ajmer Singh deceased and his brother Gurmej Singh PW were responsible for the snapping of the engagement. On 11.7.1984 at about 7.30 p.m., Gurmej Singh, PW 3 accompanied by Ajmer Singh, deceased and Raghbir Singh, PW4 were going to the fields to answer the call of nature and when they reached near the bridge on the village pond, the appellant came from the opposite side wearing the robes of a Nihang and exhorted that he would teach them a lesson for getting the engagement snapped. Immediately thereafter the appellant took out a pistol from underneath the chola (robes) that he was wearing and fired a shot at Ajmer Singh. On alarm being raised by Ajmer Singh, PW3 and PW4, the appellant fled away along with the pistol. One Major Singh, PW5 who was also present in the nearby field also witnessed the occurrence. Ajmer Singh was removed to the haveli and while he was being shifted to the Hospital at Malout, in the tractor trolley of Kashmir Singh, he expired. On reaching the hospital, the doctor pronounced Ajmer Singh dead. On information being sent by Dr. Sant Singh, Ex. P-5 about the arrival of Ajmer Singh de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gested by Gurmej Singh, PW3. Learned counsel also submitted that in Rukka Ex. P-5 which was sent by the doctor to the police station, it was recorded that the dead body had been brought to the hospital by Raghbir Singh and Major Singh and the name of Gurmej Singh was conspicuous by its absence which went to show that Gurmej Singh PW3 was not present at the time of occurrence or when the deceased was removed to the hospital. According to the learned counsel, the non-examination of Raghbir Singh, PW 4 and Major Singh, PW5 by the prosecution, who were only tendered for crossexamination, is a serious infirmity in the prosecution case and renders it unsafe to uphold the conviction of the appellant on the basis of the uncorroborated testimony of Gurmej Singh, PW3.5.Gurmej Singh, PW3, is the elder brother of the deceased. lie is the solitary eye witness examined by the prosecution. The absence of his name from rukka Ex. P-5, sent by the doctor to the police station immediately after the arrival of the dead body in the hospital creates some doubt about the presence of Gurmej Singh at the place of occurrence at the time when the deceased would have accompanied the injured to the hospital. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not examine them and tendered them for cross-examination by the accused at the trial but they were not cross-examined by the accused. From the record of the trial court we find that both PW4 and PW5 had been tendered for cross examination in the light of the observations of the Supreme Court in the case of Jaggo AIR 197 1, SC 1586. We are at a loss to appreciate how a witness could be cross-examined, when he has not been examined in chief that is to say, when there is nothing in relation to which he could be cross-examined. 8.It will be pertment at this stage to refer to Section 138 of the Evidence Act which provides : 138. Order of examinations. Witnesses shall be first examined-chief then (if the adverse party, so desires) crossexamined, then (if the party calling him so desires) re-examined. The exmination and cross-examination must relateto relevant facts but the crossexamination need not be confined to the facts to which the witness testified on his examination-in chief. Direction for re-examination. The reexamination shall be directed to the explanation of matters referred to in crossexamination; and if new matter is, by permission of Court, introduced in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 138 (supra) and, if so to what extent and in what manner it could be adopted came up for consideration by different High Courts. 11. In Veera Koravan and others v. Emperor [AIR 1929 Madras, 906] a Division Bench of the Madras High Court opined that merely tendering of a prosecution witness for crossexamination is not a practice which should be encouraged specially in a murder case as the procedure would be unfair to an accused. 12. In Sadeppa Cireppa Mutgi and others v. Emperor (AIR 1942 Bombay, 37) Beaumont, C.J. speaking for the Division Bench of the Bombay High Court opined : 'The other Kakeri witness is Shambu, (Ex. 34), and a very irregular course was adopted with regard to him. He way tendered for cross-examination. The practice of tendering witnesses for cross-examination which is no doubt often adopted, is inconsistent with S.138, Evidence Act, which says that witness shall be first examined-in-chief and then, if adverse party so desires, cross-examined, and if, the party calling him so desire, reexamined. It is obvious that if a witness is examined by the defence without having given any evidence-in-chief, he is not being crossexamined, by whatever na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ient body of evidence on the poin t concerned and then in fairness to the defence, it those witnesses for cross-examination. But the fact that the witness is tendered for cross-examination means and implies that there has been some examination-in-chief. As far as I can see, the only Practical way in which a witness can be tendered for cross examination is by asking him generally, may be bya single question, in the sessions court as to whether the statements made by him before the committing Magistrate were true and on his answering in the affirmative, tendering the evidence given in the committing Magistrate's court which would then serve as the examination-in-chief. Unless the examination-in-chief is brought on the record in that fashion, I cannot understand on what the defence will cross-examine the witness tendered for cross-ex-amination. It does not appear from the record in this case that the evidence of the witness before the Committing Magistrate was brought on the record at all. In these circumstances, tendering for cross-examination seems to me to have been almost meaningless. 16. In Chotta Singh v. State (AIR 196 Punjab, 120), the Punjab High Court held: Tende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the prosecution and the trial court for adopting the procedure of tendering PW4 and PW5 for cross examination only in our opinion, has not been properly appreciated and has been misapplied. That judgment cannot be read to lay down, as a matter of legal preposition, that a witness can be tendered for cross-examination even without there being any examination in chief If there is some earlier statement of the witness recorded by a competent court or an affidavit filed in the trial court and the witness testifies to the correctness of that earlier statement at the trial, it (in certain cases of witnesses of a formal nature) as noticed earlier be per-missible to tender him for cross-examination after he is sworn to the correctness of the earlier statement, because in that even that earlier statement is treated as the examination-in-chief of the witness but that is not the same thing as tendering a witness for cross-examination only, without there being any cxamination-in-chief on the record. In Jaggo's case (supra) a Bench of this court was considering the question whether the mere presentation of an application by the prosecution to the effect that a certain witness had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution makes such an allegation, it must keep the witness in attendance and produce him to enable the defence to cross examine such a witness to test his evidence as well as the allegations of the prosecution and bring out the truth on the record. After the coming into force of the Criminal Procedure Code, 1973, which replaced the Code of 1998, recording of evidence in commitment proceedings have been totally dispensed with and section 299 of that Code has been emitted. Consequently, the course suggested by some of the High Courts in the earlier quoted judgments regarding tendering of a witness for cross-examination who had been examined in the committal court, is also no more relevant or available. The Jaggo's case, which was decided when the Code of 1898 was operating in the field could not, therefore, be pressed into service by the trial court while dealing with the instant case tried according to the Code of 1973. Thus, considered it is obvious that the trial court, wrongly permitted the prosecution to tender PW4 and PW5 for cross-examination only. Both PW4 and PW5 were, according to the prosecution case itself, eye witnesses of the occurrence and had removed the decea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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