The Supreme Court in the case Sunder Lal v. The State of Uttar Pradesh and Anr., observed and has allowed the witness cited by prosecution to be examined by the defence, while considering that he was discharged by the former without being called to depose.
The bench comprising of Justice MM Sundresh and Justice SVN Bhatti in the case observed that the prosecution has consequentially chosen to discharge the said witness and, thus, he has not been put in the witness box to depose on behalf of the prosecution. The court stated that there being no bar in the law for examining the said witness as defence witness.
Adding to it, the court stated that it was for the Trial Court to consider the evidentiary value of the witness› statement, while leaving it open for the prosecution to cross-examine the witness in question.
Facts of the Case:
The appellant in the case was married to one X, who statedly consumed a poisonous substance of her own accord and died by suicide and sometimes after the incident, a complaint was filed by the deceased›s relatives, wherein it alleged that the appellant and his relatives used to harass the deceased over non-fulfillment of demand for dowry and cremated her body without informing the complainant-relatives. Pursuant thereto, an FIR registered against the appellant and others.
In the present case, the charge-sheet was filed under Section 304B, Section 498A of the Indian Penal Code, IPC and Section 3 or Section 4 of Dowry Prohibition Act, while mentioning the deceased›s brother Pradeep as a prosecution witness.
However, during trial, Pradeep was being discharged by the prosecution without being examined.
The court in the case observed that after the prosecution evidence was closed and statement of the accused under Section 313 CrPC recorded, the appellant moved an application as stated under Section 233 CrPC, wherein seeking to summon Pradeep. Allowing the prosecution›s objections, the Trial Court dismissed the appellant›s prayer in consideration of an averment that being under the influence of the appellant, Pradeep had lost the prosecution›s faith.
Therefore, in a challenge to the Trial Court order, the High Court also denied the appellant›s prayer while relying on the case State of M.P. v. Badri Yadav.
Aggrieved with the same, the appellant moved the Supreme Court, averring that Pradeep was never examined during the trial, neither as a prosecution witness nor as Court witness. The case of him was that the deceased›s relatives were timely informed about the incident, and consequently, Pradeep was present at the hospital to which deceased was taken after the incident, as well as at the time of inquest proceedings, cremation and other rituals.
It has also been urged by the appellant that Pradeep was a material witness, who ought to be confronted with the Inquest Report and his earlier statement that the deceased never complained of any ill-treatment at hands of her in-laws.
He also relied on the Court›s following observations made in the case Rohtash Kumar v. State of Haryana, wherein the court stated that the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. Thus, the accused can also examine the cited, but not examined witnesses, if he so desires, in his defence. Therefore, the appellant pled before the court that the bar under law applies to witnesses who have already been examined by the prosecution, not who have been dropped without examination.
The court while considering the facts and circumstances of the case held that both the Courts below were wrong in declining the request of the appellant, as factually, Pradeep had not been examined by the prosecution.
Accordingly, the court allowed the appeal and the order of the High Court, which set aside the order of the Trial Court.