Karnataka High Court Orders Trial Court To Pass Fresh Verdict in Murder Case, Says Court Can't Ignore Cross-Examination While Considering Evidence

A division bench of Justice B Veerappa and Justice Rajesh Rai K allowed the appeals filed by a murder convict Kattemane Ganesha and the victim in the same case. While Ganesha had challenged the order convicting him in the murder case, the victim had challenged the acquittal of the co-accused.

The bench remanded the cases back to the trial court for fresh orders based on the examination-in-chief as well as cross-examination of witnesses available on record, and after hearing the counsel for parties in both cases, strictly in accordance with law, within a period of three months.

“Though the provisions of Section 137 of the Indian Evidence Act does not define 'examine' to mean and include the three kinds of examination of a witness; It simply defines 'examination-in-chief, 'cross-examination' and 're-examination'. Appreciation of evidence includes consideration of the examination-in-chief as well as cross-examination,” said the court.

The court clarified that Sessions Judge shall not permit any of the parties to lead evidence, and shall proceed only on the basis of the evidence available on record.

The counsel for the convict contended that evidence of prosecution witnesses includes examination-in-chief, cross-examination and re-examination but the Sessions Judge has not considered and discussed the cross-examination portion of prosecution witnesses and thereby, the entire judgment is vitiated.

"If the judgment in one case is set-aside on the ground of non consideration of cross-examination of prosecution witnesses and the matter is remanded, the judgment in the other case also has to be set-aside and matter has to be remanded," submitted the counsel. 

The bench noted that the trial court in its order while considering the cross-examination of the first prosecution witness has observed that it finds "no worth mentioning points elicited to discredit the evidence this witness". The same observation was made by trial court in respect of remaining witnesses, noted the division bench.

“The provision of cross-examination is not merely a technical rule of evidence; it is a rule of essential justice. It serves to prevent surprise at the trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party, on whose behalf the cross-examination is being made, comes to give and lead evidence by producing witnesses. The party must be given a fair chance to cross-examine the witness,” said the court.

Further highlighting the importance of cross-examination in a criminal trial, the bench said the main object of cross-examination is to find out the truth and detection of falsehood in human testimony.

"It is designed either to destroy or weaken the force of the evidence of a witness who has already given evidence in person or to elicit something in favour of the party which he has not stated or to discredit him by showing from his past history and present demeanour that he is unworthy of credit. It is the most efficacious test to discover the truth," said the court.

It added: "It exposes bias, detects falsehood and shows the mental and moral condition of the witnesses. It also exposes whether a witness is actuated by proper motive or by enmity towards his adversaries. Sometimes cross-examination assumes unnecessary length, then the Court has power to control it. The Court must also ensure that the cross-examination is not made a means of harassment or causing humiliation to the victim of crime."

The court said it is well settled that one is required to consider the entire evidence as a whole with the other evidence on record. "Mere considering the examination-in-chief and not considering the cross-examination, cannot be considered as consideration of the evidence in its entirety," it added.

Allowing the appeals, the bench held that the Sessions Court was not justified in ignoring the cross-examination portion of prosecution witnesses while passing the judgment and that the same has resulted in miscarriage of justice.

"Since these two cases arise out of the same incident and are case and counter case, the matter has to be remanded to the Trial Court,” added the court.

Case Title: Kattemane Ganesha v. State of Karnataka

Case No: CRIMINAL APPEAL No.441 OF 2015 C/W CRIMINAL APPEAL No.1055 OF 2015

Citation: 2023 LiveLaw (Kar) 86

Appearance: Advocate S.G. Rajendra Reddy for petitioner.

Additional State Public Prosecutor Vijayakumar Majage for respondent.