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right to cross examine

advocate

Whether defence has right to cross examine the witness which is declared hostile by prosecution?

1- If not under which provision? Whether mere declaring him hostile, defence looses it's right. He may be or not fully hostile and if not cross exmined may cause harm to defence, specially in context of apex court's judgments, that evidence of hostile witness can not be washed out fully.

2- If yes under which provision?

 
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Advocate

Dear Arvind, the issue is very important in the context of Indian criminal trial which is very differenet from English criminal trial.Regarding prosecution to cross examine his own witness is clear in terms of the Indian evidence act, but for the defense to cross examine the hostile witness with the permission of the courts of facts is very different and I would also like to learn from the members. Thank you for posting such thought provoking issues.

 
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Advocate

Arvind brother.Agree with manoharan sir.
Section 154 only allows the party who has called the witness to ask the question which can be asked in cross examination. It does not bar the right of adverse party to cross examine such witness. that right is given by sec 137.

 
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Advocate

Anish, in that case both the prosecution as well as the defence will become cross examiners of one witness without examination in chief. Does the statue contemplate such trials?

 
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Assumi sir,

"without examination in chief". This statement is incorrect.  Only after examination in chief can prosecution concluded that the witness has turned hostile.  Therefore examination in chief takes place. Anish is right.

 
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after cross examination of proseqution, defence side can cross examine that witness

 
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advocate

Thanks to all learned members.

let me explain the situation. One of prosecution witness was declared hostile. Prosecution declared him hostile and crossed examined him. Court didn't allow me to cross examine that witness. I equested to allow me, court said defence have no right to cross*xamine the hostile witness, if there is any provision show to the court. Actually I could draw out some favourable information if I was allowed. So please guide me, how should I satisfy the court that I have right to cross examine hostile witness also.

 
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Arvind please read third part of S.137 of Evidence Act.  It says

The examinatioin of a witness,

subsequent to the cross examination by the party who called him,

shall be called his re examination.

Please note the positioning of the comma. What sense does it make to you?

Will it make a different sense if an additional comma is positioned after cross examination e.g. as follows

The examination of a wintess,

subsequent to the cross examination,

by the party who called him,

shall be called his re examination.

I think the enactment as it stands today with only two commas will apply to the facts and cricumstances of your case and I think you may be able to re examine the witness subject to the limitation contained in S.138 of Evidence Act.

 
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As per 2nd part of S.137, "The examination of a witness by the adverse party shall be called his cross examination"

Now the witness was not called by you but was called by the prosecution.  Therefore you have in law every right to examine him.  Since the witness was not called by you you have every right to put leading questions also.

Please note that after a prosecution witness has turned hostile, it does not mean law allows the prosecution to cross examine the prosecution witness.  S.154 only allows the prosecution to "to put questions" which might be put in cross examination by the adverse party.

Therefore it does not mean that prosecutiion has cross examined the hostile witness.

Hence you have every right to examine/cross examine the prosecution witness who had turned hostile. If the court has disallowed you put on record denial of reasonable opportunity to you to cross examine the witness.

 
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You are right if the witness is not cross examined it may cause harm to the defense.  Merely because he had turned hostile does not mean his entire evidence is washed away.

Assumi Sir,

Prosecution does not become cross examiner. S.154 as stated earlier only allows proseuction to put questions, it does not allow the prosecution to cross examine.

 
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