S. 319 CrPC | Cross-Examination Cannot Be Ignored Before Summoning Additional Accused : Supreme Court
The Supreme Court has set aside the arraignment of a woman as an additional accused under Section 319 Cr.P.C. (now Section 358 BNSS), observing that the court had failed to consider the cross-examination of the witness whose testimony formed the basis for summoning her as an accused.
A bench of Justice Manoj Misra and Justice Nongmeikapam Kotiswar Singh emphasised that the witness's entire testimony must be considered before summoning an additional accused, particularly when the statements made during cross-examination undermine the very basis of the witness's examination-in-chief on which the arraignment was ordered.
“…where the witness has been cross-examined, the trial court cannot shut its eye to the entire statement. Because evidence would not merely be the statement in chief of a witness but would include his statement recorded during cross-examination. No doubt, the trial court is not supposed to weigh the statement of a witness on the anvil of probabilities, or against the weight of other evidences, to consider whether it would be appropriate to try the additional accused along with one already facing trial. However, if the statement of a witness during cross-examination demolishes the edifice of his statement in chief, the trial court cannot overlook the statement in its entirety, when the decision to arraign additional accused rests entirely on his statement; though, after considering the statement in its entirety, it would be within the domain of the Trial Court whether to arraign the additional accused to face trial along with the one already facing trial.”, the Court said.
The appellant was arraigned as an additional accused in a murder case under Section 319 CrPC based on the testimonies of PWs 1, 2 and 3. Challenging her arraignment, she argued that PWs 2 and 3 had turned hostile and that the court had relied only on the examination-in-chief of PW1 while ignoring his cross-examination, which undermined his earlier testimony forming the basis for summoning her as an additional accused.
Aggrieved by the High Court's decision to dismiss her plea against her arraignment, the accused moved to the Supreme Court.
Setting aside the impugned order, the Supreme Court observed that the courts below have erred in ignoring the cross-examination statements of the PW1, which had shaken the veracity of his chief statements. According to the Court, while deciding the application under Section 319 for summoning of an additional accused, due credence must also be given to the cross-examination statements, if they exist, before the filing of the application under Section 319 Cr.P.C.
“As we find that neither the High Court nor the Trial Court has considered the deposition of the witnesses, particularly of PW1, in its entirety, and have overlooked the statement of PW-1 made during cross-examination, we are of the view that the order of the Trial Court as well as the High Court is liable to be set aside. However, there shall be liberty to the Trial Court to consider the request for arraigning additional accused afresh, and in accordance with law.”, the Court said.
As a result, the appeal was allowed.
Appearance:
For Petitioner(s) Mr. Lavish, Adv. Mr. Raj Kumar Bhartiya, Adv. Mr. Sudhir Mendiratta- 1759, AOR
For Respondent(s) Mr. Ashish Kumar Rai, Adv. Mr. Maruti Nandan, Adv. Mr. Ranit Mukherjee, Adv. Mr. Krishna Dev Pandey- 4141, AOR Mr. Rajesh Kumar Pandey, Adv. Mr. Inzmamul Haq Khan, Adv. Mr. Sushil Kumar, Adv.