- In the case of Besahu Lal Yadav vs State of Chhattisgarh the Chhattisgarh HC has held that when a witness is examined by the Court under section 165 of the Indian Evidence Act, he/she is required to be cross-examined to elicit further truth or other relevant facts.
- It is important to note that section 165 of the Evidence Act empowers the Court, in order to obtain proper proof of relevant facts, to ask any question he pleases, in any form, at any time to any witness or to any of the parties, and to also order the production of any document.
- In the instant case, where a charge of rape was being prosecuted, the Counsel for the accused had argued that initially the prosecutrix had supported the case of the prosecution, but in her cross examination she had disowned the occurrence of the event. And then later when the Court had examined her under section 165 of the Evidence Act, she had again supported the prosecution’s version of events.
- Thus, in order to clarify the same, the Counsel for the accused had argued that an application under section 311 of CrPC should have been allowed by the trial Court so that the prosecutrix could have been cross examined and a fair trial could be had.
- On the other hand, the Counsel for the prosecution had argued that it is the prerogative of the Court whether to allow or disallow the application under section 311 CrPC for the recalling of any witness, and the order sheet would itself reveal that a fair opportunity was given to the accused.
- The HC relied upon the decision of the Apex Court in the case of Himanshu Singh Sabharwal vs State of MP and ors. (AIR 2008 SC) wherein the Apex Court had examined the necessity of a fair trial. The Court had also examined the scope and ambit of section 311 CrPC read with section 165 of the Evidence Act, and it was observed that the combined reading of these two provisions would show that the Courts have been conferred very vast powers to elicit all necessary materials by playing an active role in the evidence collecting process.
- It was also observed in this case that if the prosecutor remisses in some ways, the Court can control the proceedings effectively so that the ultimate objective, i.e. truth, can be arrived at.
- Thus, after pursuing the statements on record and relying on the aforementioned judgement, the Court was of the opinion that when the Courts exercise the power under section 165 Evidence Act and when the leave of the Court is asked to cross-examine to eliminate further truth, having denied, would result into trial not eclipsed by any ambiguity. The question put forth by the trial Judge would only mutate in favour of the prosecution and thus, giving an opportunity to the petitioner to cross examine will wipe out any further criticism and will restore the opportunity of a fair trial.
- Thus, the application to cross-examine the prosecutrix was allowed.
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