Examination of investigating officer; before injured or eye witness is examined, does not cause prejudice to accused in his defence

Fair trial - order of examination of witnesses by prosecution - Sec.135 of Evidence Act - Sec.230, 231, 311 of CrPC

   Does examination of investigating officer before injured or eye witness is examined, cause prejudice to accused in his defence?

Held: No

   It is true that the very purpose of the criminal trial is to search for the truth, so as to mete out justice by convicting the guilty and protecting the innocent. Fair trial for criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. But here the question is whether, by reason of the investigating officer being examined prior to the victim and the eyewitness, any substantial prejudice was caused to the accused. In this regard it may be apposite to have a look at Section 135 of the Evidence Act and Sections 230, 231 (2) and 311 of the Cr.P.C.

As per Section 135 of the Evidence Act, the order in which the witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of such law by the discretion of the court. The Code of Criminal Procedure or the Kerala Criminal Rules of Practice do not contain any provision regulating the order in which the witnesses shall be produced and examined and therefore, discretion in this regard is vested with the trial court. 

The date for examination of witnesses is fixed as provided under Section 230 and the court shall proceed to take evidence produced by the prosecution on the date so fixed, as mandated under Section 231 (1) of the Cr.P.C.

As per Section 231 (2), the Judge is vested with the discretion to permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or to recall any witness for further cross-examination. Section 311 grants power to the court to recall and re-examine any person already examined, at any stage of the trial. Therefore, it was open for the defence to have requested the court to defer the cross-examination of the investigating officer till the examination of the victim and eyewitness was completed, or to have requested for recall of the investigating officer for the purpose of re-examination.,

Having failed to avail such opportunity, the appellants cannot contend that they were prejudiced by the order in which the prosecution witnesses were examined.[Para No.12]

Kerala High Court

Shoukkath

Vs.

State Of Kerala

Decided on 21/05/2020