No bar on examining witness who has been shown in prosecution list but not examined on behalf of prosecution, affirms Apex Court
Justices M.M. Sundresh& S.V.N. Bhatti [02-02-2024]

Read Order:SUNDER LAL v. THE STATE OF UTTAR PRADESH & ANR [SC- CRIMINAL APPEAL NO. 551 OF 2024]

LE Correspondent

New Delhi, February 9, 2024: The Supreme Court has clarified that a witness who has been shown in the prosecution list but not examined on behalf of the prosecution, can be permitted to be examined as a defence witness.

The Division Bench of Justice M.M. Sundresh and Justice S.V.N Bhatti was of the view that the lower Courts were wrong in declining the request of the appellant, as factually, the witness sought to be examined on the side of the defence had not been examined by the prosecution.

The prosecution had consequentially chosen to discharge the said witness and, therefore, he had 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. After all, it is for the Trial Court to consider the evidentiary value of the said witness while coming to its conclusion”, the Bench asserted.

Thus, allowing the appeal, the Bench held, “The appellant is permitted to examine the prosecution witness as defence witness. Needless to state that it is well open to the prosecution to cross-examine the said witness.”