Prosecution has discretion over examination of witnesses: SC

The Supreme Court has said that it was entirely up to the prosecution to field witnesses to establish its case and the court would not interfere with this unless the case was exceptional.

“The prosecution is not bound to examine all cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses,” the apex court bench of Justice B.S. Chauhan and Justice Dipak Misra said in a judgment pronounced May 29.

“It is the discretion of the prosecutor to tender witnesses to prove the case of the prosecution and the court will not interfere with the exercise of that discretion unless, perhaps, it can be shown that the prosecution has been influenced by some oblique motive,” Justice Chauhan, writing the judgment, said.

“In an extraordinary situation, if the court comes to the conclusion that a material witness has been withheld, it can draw an adverse inference against the prosecution, as has been provided under Section 114 of the Evidence Act”, the judgment said.

Undoubtedly, the court added, the public prosecutor must not take the liberty to “pick and choose” his witnesses, as he “must be fair to the court, and therefore, to the truth.”

In a given case, the court can always examine a witness as a court witness, if it is so warranted in the interests of justice, the court said, adding: “In fact, the evidence of the witnesses must be tested on the touchstone of reliability, credibility and trustworthiness. If the court finds the same to be untruthful, there is no legal bar for it to discard the same.”

However, this discretion of the prosecution does not denude the accused of his right to examine the witnesses that have been dropped by the prosecution.

“The accused can also examine those cited, but not examined as witnesses,” the court said.

The court clarified the position on the extent of the discretion that prosecution enjoyed in fielding a witness while upholding the Feb 5, 2009, order of the Punjab and Haryana High Court confirming the trial court order convicting and awarding life imprisonment to one Rohtash Kumar for killing his wife Sonia.

Rohtash Kumar and Sonia tied the nuptial knot in March 2003 and their marriage did not turn out to be smooth sail. Finally they decided to break up through mutual consent. On Sep 1, 2004, Rohtash told Sonia that he would appear before the family court in Rohtak to give his consent for divorce. The next day, Rohtash visited Sonia in her hostel. She was later found strangulated to death.