Contents

Appeal

Appeal against the decision of Madras High Court

2. The challenge before this Court in all these Appeals is to the decision of the Madras High Court dated 08.06.2022. Before proceeding to the impugned judgment, it is necessary to trace the trajectory of this case from the Trial Court onwards, since it has passed through a maze of facts.

Trial court convicted 13 accused and two accused were acquitted

3. A total of fifteen accused had faced trial, and the Trial Court ultimately convicted thirteen of them. Amongst them, A-1 to A3, A-5 to A-8, A-10 to A-13 were convicted primarily under Sections 302 read with 149 of the Indian Penal Code (for short ‘IPC’). They were all sentenced to life imprisonment, except A-2 (Maruthupandiyan), who was given death sentence by the Trial Court. A-14 and A-15 were the police officers, who were convicted by the Trial Court under Sections 217, 218 of IPC and Sections 3(2)(i), 4 of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ‘SC/ST Act’), and both of them were sentenced to life imprisonment. A-4 (Ayyasamy) and A-9 (Gunasekaran) were acquitted by the Trial Court, and no appeal against their acquittal was filed before the High Court.

High court modified sentences and acquitted some accused

4. By the impugned judgment, the High Court has modified the conviction and sentence of A-14 (Sub-inspector K.P. Tamilmaran), acquitting him for offences under Section 3(2)(i) of the SC/ST Act and Section 218 of IPC, but maintaining his conviction for offences under Section 4 of the SC/ST Act and Section 217 of IPC, and thus reducing the sentence imposed from life imprisonment to two years rigorous imprisonment. The conviction and sentence of another police officer (A-15, Inspector M. Sellamuthu) has been upheld. In the case of A-2, the conviction by the Trial Court has been maintained but the sentence was changed from death penalty to life imprisonment. The High Court has also acquitted two other accused, i.e. A-3 (Rangasamy) and A-13 (Chinnadurai). The remaining appeals of all other co-accused were dismissed, and their conviction and sentence was upheld.

Eleven accused are challenging the conviction

5. No appeal has been filed against the acquittal of the abovementioned accused by the High Court. Before us, now the remaining eleven accused i.e. A-1, A-2, A-5 to A-8, A-10 to A-12, A-14, A-15, have challenged their conviction and sentence.

Honour killing murder

7. This is a case of a dastardly murder of a young couple, Murugesan and Kannagi, who were only in their early twenties, when they were killed. Both of them were administered poison in full view of a large number of villagers. The masterminds and the main perpetrators of this macabre act were none other than the father and the brother of the girl Kannagi. The reason behind the murder of this young couple was that Kannagi, belonging to the ‘Vanniyar’ community, had dared to marry Murugesan, who was a ‘Dalit’ from the same village. So, at the root of this crime is the deeply entrenched hierarchical caste system in India, and ironically, this most dishonorable act goes by the name of honour-killing!

10. The eleven accused who stood convicted and sentenced by the High Court are now before us. Their defence is based primarily on the alleged weaknesses of the prosecution theory, the inconsistencies and frequent contradictions in the statements of key prosecution witnesses, including its star witness PW-49 (Chinnapillai), etc. The learned senior counsels for the appellants, Mrs. Anjana Prakash, Mr. Ratnakar Dash, Mr. M. Sathyanarayanan, Mr. Siddharth Aggarwal and Mr. S. Nagamuthu have tried to convince this Court that the testimonies of the prosecution witnesses are unreliable and there has been a total failure on the part of the prosecution to prove its case beyond reasonable doubt.

Analysis

13. In order to appreciate the sequence of events and the role of the accused, it is important to look at the testimonies of PW-1 (Samikannu-father of Murugesan), PW-2 (Velmurugan-younger brother of Murugesan), PW-3 (Palanivel-second younger brother of Murugesan), PW-15 (Tamilarasi-sister of Murugesan), and PW49 (Chinnapillai-step-mother of Murugesan), who are the main prosecution witnesses.

Delay in Trial and evidentiary value of so-called “hostile witness”

15. The long and inordinate delay which has been caused in this case, right from the lodging of the FIR, speaks volumes about the gross inefficiency at the hands of the prosecution on the one hand and dilatory tactics employed by the defence on the other hand, which together led to a slow trial.

Defence relied Hostile prosecution witnesses

16. The second and more crucial aspect is that many of the prosecution witnesses in this case have turned, what has come to be known as ‘hostile’; a fact which has been strongly pressed by the defence in their favour. The defence would also argue that the Trial Court and High Court have mainly relied on the testimonies of the family members of Murugesan, who are interested witnesses.

Prosecution placed enough materials sufficient to prove the guilt

17. In our opinion, there is no force in these arguments and as will be seen, there was enough material placed by the prosecution before the Trial Court, which was sufficient to prove the guilt of the accused, beyond a reasonable doubt.

Analysing the so-called hostile witness

18. When a witness, produced on behalf of prosecution, deposes against the prosecution version and goes against his/her own previously recorded statements, the prosecution can request the Court to declare such a witness as hostile and seek permission from the Court to cross-examine its own witness. This is the procedure followed in a Trial, as we all know. In the present case, there are as many as fifty-one prosecution witnesses and it is also a fact that many of them have turned hostile by turning against their earlier statements made before the police under section 161 CrPC, and even before the Magistrate under section 164 CrPC, in some cases. This phenomenon is not new, in fact it is sadly a common occurrence in our criminal Courts today, much to the despair and frustration of the prosecution. This case, therefore, is no exception. Despite this, however, there are witnesses in the present case, especially PW-1, PW-2, PW-3, PW15 and PW-49, whose evidence, in the form of their testimonies before the Court, is more than sufficient to convict the present appellants. A word here about the evidentiary value of a so-called hostile witness.

19. The Indian Evidence Act, 1872 (hereinafter ‘Evidence Act’) allows a party, with the leave of the Court, to cross-examine its own witness. Section 154 of the Evidence Act originally read as follows:

“154.Question by party to his own witness The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.”

How to cross-examine the hostile witness?

Khijiruddin case held that the hostile witness should totally be eschewed from consideration

20. The Calcutta High Court, in Khijiruddin Sonar v. Emperor 1925 SCC OnLine Cal 259, while interpreting Section 154 of the Evidence Act, held that “When a witness who has been called by the prosecution is permitted to be cross-examined on behalf of the prosecution under the provisions of Section 154 of the Evidence Act, the result of that course being permitted is to discredit that witness altogether and not merely to get rid of a part of his testimony”.

Khijiruddin case was overruled in Praphullakumar case by holding that the hostile witness can be relied

21. But this judgment in Khijiruddin was overruled by a five-Judge bench of the Calcutta High Court in Praphullakumar Sarkar v. Emperor 1931 SCC OnLine Cal 7. The High Court was answering a reference from a Division Bench regarding the specific question of whether the testimony of a witness, who was cross-examined by the party which produced him/her, should be discarded totally, partially, or not discarded at all. Chief Justice Rankin, speaking for three other Judges and himself, answered the reference in the following terms:

“24. In my opinion, the fact that a witness is dealt with under Section 154 of the Evidence Act, even when under that Section he is “cross-examined” to credit, in no way warrants a direction to the jury that they are bound in law to place no reliance on his evidence, or that the party who called and cross-examined him can take no advantage from any part of his evidence. There is, moreover, no rule of law that if a jury thinks that a witness has been discredited on one point they may not give credit to him on another. The rule of law is that it is for the jury to say.

Of the seven questions stated by the Division Bench I propose that we should answer four, viz.—

(3) whether the evidence of a witness treated as “hostile” must be rejected in whole or in part;

(4) whether it must be rejected so far as it is in favour of the party calling the witness;

(5) whether it must be rejected so far as it is in favour of the opposite party.

These three questions I would answer in the negative.

(6) Whether the whole of the evidence so far as it affects both parties favourably or unfavourably, must go to the jury for what it is worth.

25. To this question, I would be content to answer “yes,” …”

22. Justice Buckland, in the above case, in his concurring opinion holds that there is no law which states that the evidence of a witness, who has been cross-examined by its party, should be entirely rejected. In his opinion, it is for the jury (or the Judge) to form an opinion regarding the value of the testimony of such a witness.

Hon’ble S.C in Jagir Singh case approved the pronouncement of Khijiruddin case and did not consider Praphullakumar case

23. All the same, later this Court in Jagir Singh v. State (Delhi) (1975) 3 SCC 562 held to the contrary and approved the decision of the Calcutta High Court in Khijiruddin. This is what was said in Jagir Singh by Justice Bhagwati:

“7. Now, it is apparent from the judgment of the High Court that the conviction of the appellant rested entirely on the evidence of Pritam Singh (P.W. 10) and Sajjan Singh (P.W. 13). Swaran Singh (P.W. 11) was also examined on behalf of the prosecution but his evidence is of no help to the prosecution because he went back on the story of the prosecution and was permitted to be cross-examined on behalf of the prosecution. It is now well settled that when a witness, who has been called by the prosecution, is permitted to be cross-examined on behalf of the prosecution, the result of that course being adopted is to discredit that witness altogether and not merely to get rid of a part of his testimony. See Khijiruddin v. Emperor….”

24. However, it is to be noted that Jagir Singh does not refer to the five-Judge Bench decision of the Calcutta High Court in Praphullakumar Sarkar.

Subsequent S.C in Satpaul’s case explained that the Jagir Singh case will be applicable only the hostile witness is totally discredited

25. But then in a subsequent decision (of which Justice Bhagwati was also a part) i.e., Sat Paul v. Delhi Administration (1976) 1 SCC 727, it was held differently. Justice Sarkaria, speaking for the Bench, clarified the earlier judgment in Jagir Singh, and held that what has been held in Jagir Singh would only be applicable where a witness through cross-examination by the party which calls it, is totally discredited. It is only in such a situation that the Court, as matter of prudence, discards his/her evidence in its entirety.

26. As a general rule, the testimony of a witness who has been crossexamined by the party which produced him/her will not stand totally discredited, and it is for the Court to consider what value should be attached to this testimony. After referring to a series of judgments on this point, the Court in Sat Paul held as follows:

“52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.

53. It was in the context of such a case, where, as a result of the cross-examination by the Public, Prosecutor, the prosecution witness concerned stood discredited altogether, that this Court in Jagir Singh v. State (Delhi Admn.) with the aforesaid rule of caution — which is not to be treated as a rule of law — in mind, said that the evidence of such a witness is to be rejected en bloc.”

Hostile witness need not be discarded totally

27. An examination of the cases referred above shows that there can be no doubt about the fact that the evidence of a witness, who has been cross-examined by the side which produced him/her, cannot be totally discarded [Also see:Neeraj Dutta v. State (NCT of Delhi), (2023) 4 SCC 731].

Section 154 IEA is amended in 2005

28. It may also be worthwhile to mention here that by the Criminal Law Amendment Act of 2005, sub-section 2 was added to section 154 of the Evidence Act. The amended section 154 of the Evidence Act now reads as under:

154. Question by party to his own witness. —

(1) The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in crossexamination by the adverse party.

(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness. (Emphasis Provided)

29. By way of the above amendment, the position which had been reiterated by this Court has now come in the statute itself.

The term ‘hostile’ is from the English law

30. The word ‘hostile’ or ‘hostile witness’ has not been used anywhere in the Evidence Act. The logic behind this exclusion seems to be that the declaration of witness as ‘hostile witness’ carries a specific significance under the English law, from where this term has been derived, where liberty is only granted to a side to cross-examine its own witness when such declaration of ‘hostility’ is made. The position in India is different and here it is left to the discretion of the Court to allow a party to cross-examine its own witness, regardless of a declaration of ‘hostility’. This has been explained by this Court in Sat Paul:

“38. To steer clear of the controversy over the meaning of the terms “hostile” witness, “adverse” witness, “unfavourable” witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared “adverse” or “hostile”. Whether it be the grant of permission under Section 142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath v. Prasannamoyi [AIR 1922 PC 409: 72IC 286]). The discretion conferred by Section 154 on the court is unqualified and untrammelled and is apart from any question of “hostility”. It is to be liberally exercised whenever the court from the witnesses demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as “declared hostile”, “declared unfavourable”, the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts.”

Party can cross-examine without declaring the witness hostile

31. The phrase ‘hostile witness’ is commonly used in criminal jurisprudence and court proceedings. We too cannot escape the blame of using the term ‘hostile witness’ in our judgment. We do it for pragmatic reasons. Some words like ‘hostile witness’ in this case are now a part of our legal vocabulary. There is no point in inventing or substituting new words or phrases, at least in the present case, and we leave that for the future. But what is necessary, however, is to explain the meaning of the term as it is now to be understood. The phrase ‘hostile witness’ has come to be used for a witness who gives a statement contrary to the story of the side for which he/she is a witness. All the same, because a witness has supported some, though not all, aspects of a case, it would not automatically mean that this witness has to be declared ‘hostile’. A party can cross-examine its own witness under Section 154 Evidence Act, even without getting a declaration of ‘hostility’. The only restriction to crossexamination under Section 154 Evidence Act is that the party, who seeks to cross-examine its own witness, must obtain the leave of the Court. Whether there is a declaration of ‘hostility’ or not, one thing is clear that evidence of witness, who has been cross-examined under Section 154 Evidence Act by the party who called such witness, cannot be washed off entirely and it is for the Court to see what can be retrieved from such evidence.

Statement of hostile witness also come under section 3 as Evidence

33. The statements made by a witness in Court, including in cross-examination, either conducted by the opposite party or by the party who produced the witness, would come under the definition of ‘evidence’ under Section 3 of the Evidence Act, since this evidence has come before the Court with its permission. Moreover, there is no specific bar under the Evidence Act which mandates that such evidence has to be discarded. Thus, it would form part of the entire evidence which the Court can examine while arriving at its decision, and it is for the Court to determine what value has to be given to that piece of evidence or how such evidence has to be used in a given case.

Statement of hostile witness harm both prosecution and defence

34. Viewed from a different perspective, the rejection of the entire testimony of a prosecution witness, who has been crossexamined by the prosecution, would not only harm the case of the prosecution but perhaps also of the defence in a given case. This is because as the law stands today, the benefit of the testimony of such witness can be taken by both the prosecution and the defence, allowing them to use it to build their case [See: Paulmeli v. State of T.N. (2014) 13 SCC 90, Ramesh Harijan v. State of U.P. (2012) 5 SCC 777]. In any case, ultimately, it will be the cause of justice that will suffer if the testimony of such witness is totally discarded. It is, therefore, rightly left to the discretion of the Court to test the evidentiary value of such a testimony.

36. It is though trite and much overstated but the maxim “falsus in uno, falsus in omnibus” 3, is not applicable to our criminal justice system. It is for the Court to distinguish the wheat from the chaff while dealing with the depositions of a hostile witness. Courts can rely upon that part of the deposition of a hostile witness which is corroborated by other evidence on record. This Court in Bhajju v. State of Madhya Pradesh (2012) 4 SCC 327 discussed the worth of the evidence of a hostile witness in the following words:

“36. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence…”

If part of the evidence of a hostile witness corroborates with other reliable evidence, then that part of the evidence is admissible. Once a prosecution witness has been declared hostile and then cross-examined by the prosecution, then it is for the Court to evaluate the veracity of the testimony. There can be several reasons for a witness to turn hostile and the court must also look into these factors while evaluating the evidence given by a hostile witness. It is an uncomfortable reality in our criminal Courts for a prosecution witness to turn hostile. But then the purpose of a Trial Court is to go to the truth of the matter. Whatever evidence is there before the Court must be examined, tested, corroborated (whenever necessary), before a verdict can be finally given.

37. One of the many reasons for witnesses turning hostile is the long delay usually caused in a trial. This is again unfortunate but true in our country. The present case is no exception. Here, the incident occurred in the year 2003, the case was committed to Sessions in the year 2010 and charges were framed as late as in the year 2017, and the judgment was finally pronounced by the Trial Court on 24.09.2021. It took eighteen years!

38. The role played here by the accused in delaying the trial cannot be discounted, as already stated. The records also reveal that the depositions of most of the prosecution witnesses were recorded only towards the end of the year 2017. Moreover, CBI in this case had filed its charge-sheet, inter alia, against two persons belonging to Dalit community. Although, these two (A-4 and A-9) were finally acquitted by Trial Court as there was absolutely nothing against them, but in the process, prosecution had to declare many of its witnesses belonging to the Dalit community as hostile simply because these witnesses did not depose against A-4 and A-9. It is also clear now, in any case, that these two were wrongly made accused by the prosecution. All the same, the benefit of such witnesses turning hostile cannot be given to other accused who were found involved in the offence, on the overwhelming weight of other evidence.

39. Another plea taken by the defence is that many witnesses who have deposed against them, such as PW-49, PW-1, PW-15, are interested witnesses. PW-49 for example being the step-mother of Murugesan, the boy who was killed. Now, so far as witnesses being interested witnesses is concerned, it is a settled position of law that the Court cannot ignore the testimonies of witnesses only because they are close relatives of the victim. A Three-Judge Bench of this Court in Jaikam Khan v. State of U.P. (2021) 13 SCC 716 notes:

“……”

Eye-witness turned hostile saying that she was not even present: 42. It is from this point onwards that the case depends mainly on the testimony of PW-49 (Chinnapillai), who is the step-mother of Murugesan, and an eyewitness. She is the most important witness, as she has seen the macabre act of the actual poisoning of the two innocent lives. Although, PW-16 (Amaravathi), the aunt of Murugesan, was also produced by the prosecution as an eye-witness, but she has turned hostile and denies even being present on the spot.

Eye witness not listed in the charge sheet examined as witness relied: 45. In the present case, PW-49, who is an eyewitness, was not cited as a witness in the charge-sheet submitted by the CBI. What she had said before the police during investigation under Section 161 CrPC is what she later deposed more or less as a witness in the Court. There may be some discrepancies in PW-49’s deposition but on overall consideration of the evidence, these will be of no help to the defence.

46. The prosecution, however, was not confident that this witness would withstand the cross-examination, considering she was uneducated and extremely inarticulate. It was only later during the trial that an application was moved on behalf of the prosecution under Section 311 CrPC to summon PW-49 as an additional witness, which was allowed, and PW-49 was made a prosecution witness. This order of the Sessions Court was challenged before the High Court by none other than PW-1, who prayed that PW-49 ought to be examined as a ‘Court witness’ rather than a prosecution witness. PW-1 approached the High Court with this prayer because the apprehensions weighing in his mind were that if his wife (PW-49, Chinnapillai) is examined as a prosecution witness, she may be declared hostile, and the benefit thereof would ultimately be availed by the accused. However, the High Court dismissed PW-1’s petition and affirmed the decision of the Trial Court summoning Chinnapillai as a prosecution witness. The High Court held that these apprehensions have to be disregarded for the reason that the Trial Court is empowered under Section 165 of the Evidence Act to take care of any apprehensions as raised by PW-1 regarding PW-49 turning hostile.

Prosecution Witness and Court Witness, and Section 311 CrPC and Section 165 of the Evidence Act

Section 311: Powers or court to summon witnesses (only witnesses and not documents)

47. Before moving further, we consider it necessary to deal with the law relating to section 311 CrPC under which PW-49 was summoned as a witness. Section 311 CrPC reads as follows:

“311. Power to summon material witness, or examine person present.— Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”

This Section 311 of CrPC provides wide powers to a Criminal Court, to do the following:

i. Summon any person as a witness, or

ii. Examine any person present in court, though not summoned as witness, or

iii. Recall and re-examine any person already examined

The above powers can be exercised ‘at any stage of any inquiry, trial or other proceeding’ under the CrPC. The provision can be divided into two parts. The word ‘may’ is used in the first part of the section which grants the Court the discretion to summon a witness. In contrast, the second part of the Section uses the word ‘shall’ which casts a duty on the Court to summon and examine or recall or re-examine any such person as a witness when it appears to the Court that it is essential to do so for a just decision in the case. In other words, the second part is mandatory, and Courts are obligated to exercise their powers under Section 311 CrPC when the evidence of any person is essential for a just decision of the case. (See: Jamatraj Kewalji Govani v. State of Maharashtra 1967 SCC OnLine SC 19).

Powers under section 311 crpc can be used suo motu or through application

48. As is clear from the language of the provision itself, there is a wide discretion with the Courts under Section 311 CrPC. These powers can be exercised suo moto or on an application moved by either side. After all, the object is that the Court must not be deprived of the benefit of any valuable evidence. It is absolutely necessary that the Court must be apprised of the best evidence available. Thus, Courts have been given wide powers to decide on their own if a witness is required to be called or recalled for examination or re-examination. This power under Section 311 CrPC can be invoked at any stage of the trial, even after the closing of the evidence. Section 311 CrPC can also be read along with Section 165 of the Evidence Act, as the powers of the Court under Section 165 of the Evidence Act are complementary to Section 311 of CrPC. As discussed above, powers under Section 311 CrPC can either be exercised on an application moved by either side to the case or suo moto by the Court. In case a person is not listed as a witness in the charge-sheet but later, the prosecution desires to bring that person as an additional prosecution witness, then the prosecution can move an application to bring this person as a prosecution witness. It is then for the Court to decide whether such a person is required as a witness or not. If the Court finds that such a person should have been examined as a prosecution witness and he/she was omitted from the list of witnesses due to some oversight, mistake or for any other reason, the Court may allow the application and such a person can be examined as a prosecution witness. Thereafter, the normal course of examination-in-chief, crossexamination, etc. would follow as per the procedure. On the other hand, when the Court calls a person as a Court witness, there 48 are some restrictions regarding the cross-examination of such witness.

Court cannot compel either party to call a witness if they are not interested

49. In a case where neither party is interested in examining a person as a witness yet the Court feels that the evidence of such a person is necessary for a just decision, the Court though cannot compel either the prosecution or the defence to call a witness, but it can invoke its power under Section 311 CrPC, read with Section 165 of the Evidence Act and call such a person as a Court witness. Whether a person is required to be examined as a witness for a just decision is again a question which has to be decided by the Court on the basis of the facts of that particular case. (See: Rama Paswan v. State of Jharkhand (2007) 11 SCC 191)

No party can claim cross-examination of a court witness as a matter of right

50. As far as cross-examination of a Court witness is concerned, no party can claim cross-examination of a Court witness as a matter of right. A Court witness can only be examined with the leave of the Court [See: Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors. (2006) 3 SCC 374 and Jamatraj (Supra)]. Where a Court witness says something prejudicial to any party, then such a party must be allowed to cross-examine that witness.

51. Also, as discussed earlier, Court witnesses can be crossexamined by either side but only with the leave of the Court. Further, the cross-examination is to be restricted only to what was stated by this witness in his/her reply to the questions of the Court, and a Court witness cannot be contradicted to his/her previous statements made before the police i.e. statements under section 161 of CrPC. The proviso to section 162(1) of CrPC makes it very clear that only prosecution witnesses can be contradicted against their previous Section 161 CrPC statements. Under the proviso to Section 162(1) of CrPC, Section 161 CrPC statements of any prosecution witness can be used by the defence to contradict such a witness during the cross-examination. The prosecution may also contradict its own witness during crossexamination regarding the previous statements made before the police, but again it can only be done with the leave of the Court. [See: Mahabir Mandal & Ors. v. State of Bihar (1972) 1 SCC 748, Dipakbhai Jagdishchandra Patel v. State of Gujarat & Anr. (2019) 16 SCC 547]

All the same, none of these restrictions apply to the Court, which has wide power under Section 165 of the Evidence Act to ask any questions. The Courts are not barred from putting questions which may contradict the witness with the previous statements made before the police. The special powers of the Court under Section 165 of the Evidence Act are not impaired or controlled by the provisions of Section 162 of the CrPC. (See: Raghunandan v. State of U.P. (1974) 4 SCC 186).

54. In the present case, in our opinion, the High Court was right in dismissing the apprehensions of PW-1 that the prosecution would get PW-49 declared hostile to the benefit of the accused. These apprehensions were not well-founded. PW-49 is an eyewitness, she ought to have been made a prosecution witness in the first instance. Theoretically speaking, the Trial Court could have called her as a Court witness, in light of the facts of the present case, as her evidence was absolutely essential for the just decision of the case. All the same, before the Trial Court could have done it, the prosecution itself moved an application to summon her as a prosecution witness and therefore, in our opinion, the Trial Court rightly made her a prosecution witness by allowing such an application. In the present case, PW-49 did not support the case of prosecution on some aspects, such as the role of A-4 and A-9 (Dalits who were made accused), yet her evidence in respect of other accused was correctly relied upon by the Trial Court in convicting the other accused.

Purpose of investigation

67. The purpose of an investigation, like the purpose of a trial, is to reach to the truth. The duty of an Investigating Officer is to lawfully collect evidence. In the present case, the Investigating Officer (A-15) not only covered evidence but fabricated his own. Instead of collecting evidence, he created evidence and tried to implicate the innocent and set the guilty loose. In order to fulfil his wicked design, he has deliberately and willfully violated the mandate of Sections 154 and 157(1) of CrPC as well as Section 23 and 24 of the Police Act, 1861.

68. Section 154(1) of CrPC provides that when an officer-in-charge of a police station receives any information regarding the commission of a cognizable offence, such information shall be reduced in writing and be read over to the informant. The relevant part of section 154(1) reads as follows:

“154. Information in cognizable cases.—(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf…”

Information or otherwise

69. Reading of the above provision should not be misunderstood to mean that the police is empowered to register FIR only in cases where some informant comes forward and provides information regarding the commission of a cognizable offence to the police.

Once the police gets information regarding the commission of a cognizable offence, whether it is through any informant/complainant or otherwise, police is empowered to register the case and proceed with the investigation. This becomes clear from the bare reading of Sections 156 and 157 of CrPC. Section 156(1) reads as under:

“ sections 156 ….. 157 crpc”

The above provisions make it very clear that where an officerin-charge of a police station, from information received or otherwise, has reason to suspect that a cognizable offence has been committed, he shall forthwith send a report to a Magistrate and shall start the investigation.

Lalita Kumari case

A Constitution Bench of this Court in Lalita Kumari v. Govt. of U.P. (2014) 2 SCC 1 made it absolutely clear that an FIR can be registered even if there is no formal informant. In fact, it is obligatory for police to register the FIR when they receive any information which is sufficient to suspect that some cognizable offence has been committed. This is exactly what was said by this Court:

“97. The Code contemplates two kinds of FIRs: the duly signed FIR under Section 154(1) is by the informant to the officer concerned at the police station. The second kind of FIR could be which is registered by the police itself on any information received or other than by way of an informant [Section 157(1)] and even this information has to be duly recorded and the copy should be sent to the Magistrate forthwith. The registration of FIR either on the basis of the information furnished by the informant under Section 154(1) of the Code or otherwise under Section 157(1) of the Code is obligatory…”

It is not the case that Lalita Kumari (Supra) had made the registration of FIR obligatory for the first time; it was always there in the statute. Thus, even in the absence of a formal informant, the police is duty-bound to register the case whenever they receive any information regarding the commission of a cognizable offence.

In the present case, as discussed earlier, there is no doubt that A-14 and A-15 had the information regarding the death of Murugesan and Kannagi on the day of the incident itself i.e. on 08.07.2003. However, they did not register the FIR, thereby acting in violation of the provisions of law. Their defence that nobody came forward to lodge a complaint for registration of FIR cannot be accepted for two reasons. Firstly, when members from Murugesan’s family went to the police station to register an FIR, they were rebuffed and were given caste-based abuses. Thus, their plea that nobody came forward to lodge a complaint is unsustainable in light of the facts of the case. Secondly, even if we assume for the sake of argument that nobody went to the police station to report the double murders, it was the duty of A14 and A-15 to register the FIR as it cannot be doubted that they had information regarding the crime. Hence, their defence is unacceptable in light of the law as well as the facts of the case, and has rightly been disbelieved by the High Court.

Conclusion

Victim compensation

75. We have also looked into the aspect of victim compensation in this case. A crime is an act against the State. But a wicked and odious crime, as the one we have just dealt with, is the ugly reality of our deeply entrenched caste structure. Honour-killing, as these are called, must get a strong measure of punishment. We are also of the opinion that victim compensation here is warranted. We thus award compensation of Rs. 5,00,000/- (Rupees Five Lakhs) to PW-1 (Samikannu-father of Murugesan) and PW-49 (Chinnapillai – step-mother of Murugesan) jointly, or to the nearest of their kins. This compensation is liable to be paid by the State of Tamil Nadu to the above-mentioned persons. We further clarify that this compensation would be in addition to the amount awarded or directed to be paid as compensation by the Sessions Court and High Court.

Appeal dismissed

76. We see no reason to interfere with the impugned judgment of the Madras High Court, and these appeals are, accordingly, dismissed.

77. All those appellants, who are on bail, are directed to surrender within two weeks from today to undergo their remaining sentence.

Resources

Judgments

Directly Involved Judgment

Decision of the Madras High Court (Dated 08.06.2022): This is the impugned judgment under challenge in the present appeals. The High Court modified the death penalty of A-2 to life imprisonment, acquitted A-3 and A-13, and modified/uphold convictions and sentences for the remaining co-accused, including police officers A-14 and A-15, in a case concerning caste-based honor killing.

Judgments on Evidentiary Value of Hostile Witnesses

Khijiruddin Sonar v. Emperor (1925 SCC OnLine Cal 259): The Calcutta High Court initially interpreted Section 154 of the Evidence Act to mean that when the prosecution is permitted to cross-examine its own witness, the result is to completely discredit that witness altogether rather than discarding just a part of their testimony.
Praphullakumar Sarkar v. Emperor (1931 SCC OnLine Cal 7): A five-judge bench of the Calcutta High Court overruled Khijiruddin, holding that treating a witness under Section 154 does not legally warrant total rejection of their evidence, and it remains for the judge or jury to decide which parts of the testimony are creditworthy.
Jagir Singh v. State (Delhi) ((1975) 3 SCC 562): The Supreme Court ruled contrary to Praphullakumar Sarkar and approved the Khijiruddin position, stating that permitting the prosecution to cross-examine its own witness discredits that witness altogether.
Sat Paul v. Delhi Administration ((1976) 1 SCC 727): Clarified Jagir Singh, ruling that a cross-examined witness’s evidence cannot be treated as completely washed off the record. The judge may believe creditworthy parts of the testimony if the witness’s credit is not entirely shaken. It also noted that the Indian Evidence Act deliberately avoids the term “hostile witness” to leave the matter entirely to judicial discretion.
Baikuntha Nath v. Prasannamoyi (AIR 1922 PC 409): A Privy Council decision cited within Sat Paul to highlight that granting permission to a party to cross-examine its own witness is left entirely to the discretion of the court.
Neeraj Dutta v. State (NCT of Delhi) ((2023) 4 SCC 731): Cited to reinforce the established legal rule that the testimony of a witness cross-examined by the party producing them cannot be completely discarded as a matter of law.
Paulmeli v. State of T.N. ((2014) 13 SCC 90): Cited to demonstrate that the benefit of a witness’s testimony who has been cross-examined by the prosecution can be availed by both the prosecution and the defence to build their respective cases.
Ramesh Harijan v. State of U.P. ((2012) 5 SCC 777): Also cited to show that both sides in a trial are legally permitted to utilize the testimony of a witness cross-examined by the party calling them.
Bhajju v. State of Madhya Pradesh ((2012) 4 SCC 327): Reiterated that the evidence of a hostile witness remains admissible in a trial, is not washed off the record, and can be relied upon by the prosecution to the extent it supports the prosecution’s version, provided it is corroborated by other reliable evidence.

Judgments on Related and Interested Witnesses

Jaikam Khan v. State of U.P. ((2021) 13 SCC 716): A three-judge bench decision holding that testimonies cannot be disbelieved solely on the ground that the witnesses are interested or related to the victim, though their evidence must be scrutinized with due care and caution.
State of A.P. v. S. Rayappa ((2006) 4 SCC 512): Highlighted the difference between an interested witness and a related witness, explaining that close relatives are natural witnesses who are unlikely to screen the real culprit and falsely implicate an innocent person.

Judgments on Section 311 CrPC and Court Witness Powers

Jamatraj Kewalji Govani v. State of Maharashtra (1967 SCC OnLine SC 19): Clarified that the second part of Section 311 CrPC is mandatory, obligating courts to summon or recall a witness if their evidence is essential to a just decision. It was also cited regarding the restriction that a Court witness can only be cross-examined with the leave of the court.
Rama Paswan v. State of Jharkhand ((2007) 11 SCC 191): Ruled that whether a person’s examination is essential for a just decision under Section 311 CrPC must be evaluated based on the specific facts of each case.
Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors. ((2006) 3 SCC 374): Cited to establish that no party can claim the right to cross-examine a Court witness as a matter of right; it can only be done with the leave of the court.
Mahabir Mandal & Ors. v. State of Bihar ((1972) 1 SCC 748): Cited regarding procedural restrictions under Section 162(1) CrPC and the requirement of court leave for the prosecution to contradict its own witness with prior police statements.
Dipakbhai Jagdishchandra Patel v. State of Gujarat & Anr. ((2019) 16 SCC 547): Similarly used to affirm that contradicting a witness with their previous statements made under Section 161 CrPC requires the leave of the court.
Raghunandan v. State of U.P. ((1974) 4 SCC 186): Held that the special powers of a court to question witnesses under Section 165 of the Evidence Act are not impaired, restricted, or controlled by the provisions of Section 162 of the CrPC.
Ram Chander v. State of Haryana ((1981) 3 SCC 191): Emphasized that a judge in a criminal trial must not be a mere passive spectator, umpire, or recording machine, but must actively participate under Section 165 of the Evidence Act to discover the truth and advance justice without usurping the prosecutor’s role.
Jones v. National Coal Board ((1957) 2 All ER 155): An English judgment quoted within Ram Chander regarding the limits of a judge’s intervention and whether they should “drop the mantle of a Judge and assume the robe of an advocate”.

Judgment on the Obligation to Register an FIR

Lalita Kumari v. Govt. of U.P. ((2014) 2 SCC 1): A Constitution Bench judgment establishing that it is statutory and mandatory for the police to register an FIR when they receive information disclosing a cognizable offence under Section 154(1) or via Section 157(1), even if no formal informant comes forward.

Acts and Sections

Indian Penal Code (IPC)

Section 302 read with Section 149: Pertains to punishment for murder read with unlawful assembly.
Section 217: Public servant disobeying the direction of law with intent to save a person from punishment or property from forfeiture.
Section 218: Public servant framing incorrect record or writing with intent to save a person from punishment or property from forfeiture.
Section 147: Punishment for rioting.
Section 201: Causing disappearance of evidence of an offence, or giving false information to screen the offender.

Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act)

Section 3 / Section 3(2)(i): Pertains to punishments for offences of atrocities, specifically giving or fabricating false evidence intending to cause a member of an SC/ST community to be convicted of a capital offence.
Section 4 / Section 4(1) & (2): Punishment for neglect of duties by a public servant who is not a member of an SC/ST community (e.g., failure to read out information to an informant, register complaints, or conduct investigations).

Code of Criminal Procedure, 1973 (CrPC)

Section 311: Power of the court to summon a material witness, or examine/recall a person present.
Section 154 / Section 154(1): Information in cognizable cases and the statutory duty of the police to register a First Information Report (FIR).
Section 156 / Section 156(1): Police officer’s power to investigate a cognizable case without the order of a Magistrate.
Section 157 / Section 157(1): Procedure for investigation and the obligation to send a report to a Magistrate upon suspecting the commission of a cognizable offence.
Section 161: Statements made to the police during the course of an investigation.
Section 162 / Section 162(1): Statements to police not to be signed, and the restricted use of such statements in evidence (including the proviso allowing the defense to contradict a prosecution witness).
Section 164: Recording of confessions and statements before a Magistrate.
Section 172(2): Enables the court to send for police diaries in a case and use them to aid it in the trial.

Indian Evidence Act, 1872

Section 154 / Section 154(1) & (2): Questions by a party to his own witness (allowing a party to cross-examine their own witness with the court’s leave without completely discarding their testimony).
Section 165: The broad right and power given to a judge to ask any question, in any form, at any time, to discover the truth.
Section 3: Interpretation clause providing the definition of “Evidence” (oral and documentary).
Section 155: Pertains to impeaching the credit of a witness.
Section 142: Grant of permission by the court to put leading questions.
Section 145: Manner of contradicting a witness (referenced within the proviso to Section 162 CrPC).

Police Act, 1861

Section 23: Relates to the duties of police officers (referenced concerning the Investigating Officer violating their mandate).
Section 24: Relates to information laid before police officers (referenced concerning the Investigating Officer violating their mandate).

Party

K. P. Tamilmaran versus The State by Deputy Superintendent of Police - Criminal Appeal No. 2253 of 2025 (@ Special Leave Petition (Criminal) No. 1522 of 2023) - 2025 INSC 576 - April 28, 2025 – Hon’ble Mr. Justice Sudhanshu Dhulia and Hon’ble Mr. Justice Prashant Kumar Mishra.

KP-Tamilmaran-v-State-by-deputy-superintendent-of-police Download

Author’s note

Section 311 is the section empowered or outlines the powers of court to summon witnesses in other words this sections pertains only to summoning witnesses, not documents. In many trial courts both the prosecution and the defence are using section 311 crpc as a tool to summoning additional witness to depose afresh or to recall already examined witness to depose again, with the prayer to summon them along with the documents.

Here, section 311 crpc is not a tool to summon any person to give testimony irrelevant to the case nor the court can summon the witness along with the documents.

But when a witness is testifying, and court believes that certain documents which is in the custody of the witness is required to the just decision of the case or are relevant to the case then the court may exercise its power to do so by invoking section 165 IEA and not under section 311 CrPC. That is the reason the Hon’ble Supreme Court keep on insisting that the court to use its twin powers both under section 311 Cr.P.C along with 165 IEA whenever required.

Question: If, upon an application (either to call an additional witness or to recall a witness) a court calls a person as an additional witness or for cross-examination/re-examination, then, what is the capacity/status of that witness? Is she/he considered a court witness (C.W) or a prosecution witness (if requested by prosecutor) (P.W) or a defence witness (if requested by the defence) (D.W). How should this witness be treated?

For example: Suppose if an accused files an application under section 311 Cr.P.C to cross-examine a prosecution witness already deferred or not crossed by him, (since the accused has no provision to call him as a matter of right), and, the application is being permitted by the court for the specific purpose prayed, shall we take that the defence counsel is now cross-examining the court witness? (This is because the court witness cannot be cross-examined without the permission of the court, here no doubt the permission to cross-examine and contradict the witness was granted to the accused by allowing the petition) or should we consider the defence counsel cross-examining the prosecution witness?