Witness Who Was Shown In Prosecution List But Not Examined By Prosecution Can Be Summoned As Defence Witness: Supreme Court

In a dowry death case, the Supreme Court recently allowed a witness cited by prosecution to be examined by the defence, considering that he was discharged by the former without being called to depose.

"...the prosecution has consequentially chosen to discharge the said witness and, therefore, he has not been put in the witness box to depose on behalf of the prosecution. In such view of the matter, there is no bar in the law for examining the said witness as defence witness", said the Bench of Justices MM Sundresh and SVN Bhatti.

Leaving it open for the prosecution to cross-examine the witness in question, the Court added that it was for the Trial Court to consider the evidentiary value of the witness' statement.

Facts of the case may be briefly recapitulated as such: the appellant was married to one X, who statedly consumed a poisonous substance of her own accord and died by suicide. Sometime after the incident, a complaint was filed by the deceased's relatives, alleging 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. 

The charge-sheet was filed under Sections 304B/498A of IPC and Sections 3/4 of Dowry Prohibition Act, mentioning the deceased's brother Pradeep as a prosecution witness. However, during trial, Pradeep was discharged by the prosecution without being examined.

After prosecution evidence was closed and statement of the accused under Section 313 CrPC recorded, the appellant moved an application under Section 233 CrPC 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. In a challenge to the Trial Court order, the High Court also denied the appellant's prayer relying on State of M.P. v. Badri Yadav.

Aggrieved, the appellant moved the Supreme Court, averring that Pradeep was never examined during the trial (neither as a prosecution witness nor as Court witness). His case 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.

The appellant urged 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. In support of his case, he relied on the Court's following observations in Rohtash Kumar v. State of Haryana,

"...the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. The accused can also examine the cited, but not examined witnesses, if he so desires, in his defence".

Distinguishing Badri Yadav, the appellant pled that the bar under law applies to witnesses who have already been examined by the prosecution, not who have been dropped without examination.

After hearing the submissions, the court 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 appeal was allowed and order of the High Court, which confirmed the order of the Trial Court, set aside.

Case Title: Sunder Lal v. The State of Uttar Pradesh & Anr., SLP(Crl) No.10756/2023

Citation : 2024 LiveLaw (SC) 98

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