Supreme Court explains role of public prosecutor and trial judge in cross-examination of hostile witness

The Supreme Court recently impressed upon the public prosecutors to ensure a thorough cross-examination of hostile witnesses to bring out the truth and establish that they are deliberately resiling from the statement recorded under Section 161 of the Code of Criminal Procedure (CrPC) [Anees v. State Govt. of NCT]..The Bench of Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra noted with concern that the public prosecutors do not conduct an effective cross-examination of hostile witnesses."Over a period of time, we have noticed, while hearing criminal appeals, that there is practically no effective and meaningful cross- examination by the Public Prosecutor of a hostile witness," the Court said..The Court explained that it was not sufficient to confront the hostile witness with his or her police statement only to bring the contradictions on record."The object of the cross-examination is to impeach the accuracy, credibility and general value of the evidence given in-chief; to sift the facts already stated by the witness; to detect and expose the discrepancy or to elicit the suppressed facts which will support the case of the cross-examining party," it said.It added that a good, seasoned and experienced public prosecutor would not just bring forth the contradictors on record but also cross-examine the hostile witness at length to establish that they had actually witnessed the incident as narrated to the police..The Court made the observations while upholding the conviction of a man who had murdered his wife in 1995. 5-year-old daughter of the victim was the only eyewitness in the case. However, she turned hostile during the trial. While examining the evidence, the top court noted that after the child turned hostile, the public prosecutor had only put a few suggestions to her for the sake of cross-examination and no proper contradictions were brought on record."In the case at hand, not only proper contradictions were not brought on record in the oral evidence of the hostile witnesses, but even those few that were brought on record, were not proved through the evidence of the Investigating Officer".While the top court questioned the public prosecutor's omissions, it also said that the trial judge had failed to play an active role in the present case.It was the duty of the court to arrive at truth after the public prosecutor failed in his duty, it said."The courts have to take a participatory role in the trial and not act as mere tape recorders to record whatever is being stated by the witnesses. The judge has to monitor the proceedings in aid of justice. Even if the prosecutor is remiss or lethargic in some ways, the court should control the proceedings effectively so that the ultimate objective that is the truth is arrived at," the top court said.It added the trial court must exercise the vast powers available to it in criminal law to elicit the necessary evidence when the prosecuting agency shows an indifference or adopts an attitude of aloofness..Advocate Rishi Malhotra represented the convict.Additional Solicitor General KM Nataraj with Advocates Mukesh Kumar Maroria, Apoorv Kurup, Sanjay Kumar Tyagi, Mani Munjal, Vinayak Sharma and Raman Yadav represented the State.[Read Judgment]