Indian evidence act, 1872
Santosh Tudu
(Querist) 16 May 2014
This query is : Resolved
Can a prosecution witness be called by defense ?
Guest
(Expert) 17 May 2014
Discuss your real problem, if you have any, with full background of the case.
V R SHROFF
(Expert) 17 May 2014
Dear PP,
Defence have all right to call anybody including your prosecution Witness..
Why Not????he is accused after all, and all opportunities must be allowed to him to prove his innocence..
V R SHROFF
(Expert) 17 May 2014
Being Public Prosecution and a Advocate, such Academic Query by bother Advocate Shri Santosh Tudu may be replied.
Santosh Tudu
(Querist) 17 May 2014
Respected PS dhingra, problem is that a case is u/s. 47(a) Jharkhand Excise Act and a witness, who is servant in PoO shop, police not made him CS witness but recorded his statement u/s. 161 Cr.P.C.; now defence is prepared for call him as their witness after closing of prosecution witnwss. Sir, my query is whether any ruling is made by the Hon'ble SC or Jhakhand HC that defense cannot call the above type of witness ?
Guest
(Expert) 17 May 2014
Dear Mr. Tudu,
Thanks for your clarification. Yourself being a public prosecutor, I can understand your confusion. But, as of a fair policy, the accused must be given appropriate and adequate chance to defend himself. So, what right prosecution side cannot enjoy freely, an accused is allowed with the intention that injustice may not be caused to anyone.
In fact, if the police recorded statement of a witness u/s 161 they should also have morally listed the person as a prosecution witness for evidence before the judge. Otherwise, the statement does not bear any value for the purpose of delivery of justice in its right perspective. Sometimes, police records a statement on hearsay basis or by thrusting pressure on the witness. That issue or real fact can come to light only when the witness himself is allowed to testify before the judge.
Sp, let the defence call the witness for examination/cross-examination. If the party is really involved in the crime, you can very well handle the evidence in your own way.
T. Kalaiselvan, Advocate
(Expert) 17 May 2014
The prosecution may decide to dispense with one or more of the listed witnesses, but if the accused is listing the same dispensed witness as defence witness, there is nothing wrong in it, he can be permitted to examine the said witness in the interest of justice by allowing fair chance to the accused to defend himself properly.
R Trivedi
(Expert) 23 May 2014
Merely by recording statement under S.161 by police, a person does not become witness, accused can call anyone, practically anyone, as defense witness and may take the help of court for summoning such witness.
In practice as such accused has the right to cross examine any or all the prosecution witness, so if a person gives his examination in chief or submits his affidavit, then he can be rightfully called by accused for cross examination, if he is made available for cross then there is no need for calling him as defense witness, rather it will be suicidal either for the accused or for the witness himself.
In this case the concerned person is not the prosecution witness at all, so he can be called as defense witness.
