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

The question which arises for consideration in this appeal is

as to whether a witness which 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. {Para 2}

3. In our considered view, both the Courts are wrong in declining

the request of the appellant, as factually, the witness sought

to be examined on the side of the defence has not been

examined by the prosecution. In other words, 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.

4. In such view of the matter, there is no bar in the law for

examining the said witness as defence witness. 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024 (@ SLP(CRL.) No.10756/2023)

SUNDER LAL Vs THE STATE OF UTTAR PRADESH & ANR. 

Dated: 2nd FEBRUARY, 2024.

1. Leave granted.

2. The question which arises for consideration in this appeal is

as to whether a witness which 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.

3. In our considered view, both the Courts are wrong in declining

the request of the appellant, as factually, the witness sought

to be examined on the side of the defence has not been

examined by the prosecution. In other words, 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.

4. 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.

5. Accordingly, the impugned order passed by the High Court

confirming the order passed by the Trial Court stands set

aside.

6. Consequently, the appeal stands allowed. 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.

7. Pending application(s), if any, shall stand disposed of.

……………………………………………………J.

[M.M. SUNDRESH]

……………………………………………………J.

[S.V.N. BHATTI]

NEW DELHI;

2nd FEBRUARY, 2024