Cross-Examination Of Witness Should Be Deferred Only In Exceptional Cases: SC To Trial Courts

It is in the fitness of things that while acting fairly in taking the right step in the right direction, the Supreme Court in a most learned, laudable, logical, landmark and latest judgment titled Surender Singh vs State (NCT of Delhi) in Criminal Appeal No. 597 of 2012 and cited in Neutral Citation No.: 2024 INSC 462 that was pronounced as recently as on July 3, 2024 in the exercise of its criminal appellate jurisdiction has minced just no words in asking the trial courts to desist from granting long adjournments after examination-in-chief of witnesses while cautioning that such delays may affect the fairness of the trial and even endanger the safety of the witness. It must be noted that the Bench of Hon’ble Mr Justice Sudhanshu Dhulia and Hon’ble Mr Justice Rajesh Bindal underscored that as far as possible, the defence should be asked to cross examine the witness on the same day or the following day after the chief examination. To put it differently, the Bench was most unequivocal in putting across clearly that, “Only in very exceptional cases, and for reasons to be recorded, the cross examination should be deferred and a short adjournment can be given after taking precautions and care, for the witness, if it is required.”

It must be disclosed here that the Apex Court was hearing an appeal that had been filed by a former police guard against his conviction and life sentence in a murder case. Surender Singh who is the convict had been found to be guilty of murdering a man who was alleged to have been in an illicit relationship with his wife inside the Mayur Vihar Police Station in 2002. After Surender’s conviction was upheld by the Delhi High Court in 2011, he then moved the top court.

While dismissing the appeal, the Apex Court pointed out that, “The case of the defence that the deceased came to the Police Station “unarmed” to kill the appellant knowing very well that the appellant was armed with a weapon is an awkward attempt to present the deceased as the aggressor. It does not make any sense.” It may be recalled that Surender Singh had been granted bail by the top court in 2012. We thus see that with the dismissal of his appeal, he was directed by the Apex Court to surrender before the Trial Court within four weeks from today.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Sudhanshu Dhulia for a Bench of the Apex Court comprising of himself and Hon’ble Mr Rajesh Bindal sets the ball in motion by first and foremost putting forth in para 1 that, “The appellant before this Court has challenged the order of the High Court (dated 18.05.2011) which has dismissed his appeal while upholding his conviction and sentence by the Trial Court for offences under Sections 302 and 307 of the Indian Penal Code, for which he has been sentenced for life imprisonment and 7 years of rigorous imprisonment respectively.”

To put things in perspective, the Bench envisages in para 3 that, “As the facts of the case would reveal the present case is of a brazen murder, committed inside a Police Station in Delhi. The prosecution case is that the appellant, who was posted as a police guard at Mayur Vihar Police Station, Delhi, executed this murder inside the police station, while he was on duty!”

While elaborating, the Bench lays bare in para 4 that, “The deceased was married to the appellant’s first cousin and was also his neighbour. The prosecution case is that the deceased had an illicit relationship with the wife of the appellant. There are more than one witnesses to the fact that the deceased and the appellant were last seen together in conversation with each other inside the police station even minutes before these witnesses saw the appellant killing the deceased with his official 9 m.m. carbine.”

As we see, the Bench then discloses in para 5 that, “An FIR was lodged at Police Station Mayur Vihar, New Delhi on 30.06.2002 at 2:30 pm, under Sections 302/307 IPC on the narration of PW-2 who was posted at the Police Station, Mayur Vihar, New Delhi as Head Constable at the relevant point of time. PW-2 states that on the date of the incident she reached the Police Station at around 11.30 am and saw the appellant talking to the deceased. She further states that at around 11.40 am, she heard sounds of fire and then saw the deceased running towards the Duty Officer’s room; he was bleeding with his hands held up in the air. The appellant was seen firing at the deceased from his Carbine. When the firing stopped, the deceased was seen lying outside the duty officer room, bleeding profusely. The appellant was apprehended along with his carbine by the police staff, and PW-2 who was also injured in the firing was taken to the LBS Hospital where she received medical aid, and later lodged the FIR.”

As it turned out, the Bench enunciates in para 6 that, “The police after its investigation filed chargesheet and the case was committed to Sessions, where charges were framed under Sections 302/307 of IPC against the present appellant. The prosecution examined as many as 27 witnesses. The accused, after giving his statement under Section 313 CrPC, had also examined a witness as DW-1. The Trial Court ultimately convicted and sentenced the appellant under Sections 302 and 307 IPC as already stated above.”

Do note, the Bench notes in para 10 that, “In her examination-in-chief PW-2 says that on 30.06.2002, she was posted at Police Station, Mayur Vihar where she was to work as duty officer from 9 a.m. to 5 p.m., but as she had some personal work in the morning that day, she had taken prior permission from the SHO to arrive late. She hence reached the P.S. at 11.35 a.m. and at the gate, she saw the appellant-Surender (whom she identifies in the court), and who was posted as guard in the same Police Station, talking to a stranger near a corner of the premises. She then went straight to her duty room and while she was talking to the Head Constable Om Pal (PW-1) from whom she had to take the charge, and where constable Vinod (PW-17) and DHG Jai Singh (PW-5) were also present along with Munshi Gulzari Lal, she suddenly heard sounds of bullet shots in the compound of the Police Station. Then she saw the person with whom the appellant was having a conversation (i.e. the deceased) rushing towards the duty officers’ room with his hands up in the air; and he was bleeding. She also saw Constable Surender (i.e. the appellant before this Court), chasing this person from behind, still firing from his 9mm carbine, aiming at the deceased. She as well as the head Constable Om Prakash, Constable Vinod and DHG Jai Singh bent down and took shield in order to avoid stray bullets. She then saw the deceased lying outside the room, bleeding profusely. By this time, she had realized that she too had received bullet injuries on her left shoulder. She was then taken to LBS Hospital by Head Constable Jai Prakash. It was in the hospital that she was informed that the deceased (Satish) was a relative of Surender and that he is now dead, due to the bullet injuries sustained in the firing.”

Most significantly, the Bench propounded in para 11 that, “The defence did not cross-examine this witness immediately after her examination-in-chief, but sought that the cross examination be deferred, which was done and she was cross-examined only on 30.11.2004, which is more than two months after her examination-in-chief. We may just stop here for a while only to sound a note of caution. Such long adjournment as was given in this case after examination-in-chief, should never have been given. Reasons for this are many, but to our mind the main reason would be that this may affect the fairness of the trial and may even endanger, in a given case, the safety of the witness. As far as possible, the defence should be asked to cross examine the witness the same day or the following day. Only in very exceptional cases, and for reasons to be recorded, the cross examination should be deferred and a short adjournment can be given after taking precautions and care, for the witness, if it is required. We are constrained to make this observation as we have noticed in case after case that cross examinations are being adjourned routinely which can seriously prejudice a fair trial.”

Be it noted, the Bench notes in para 12 that, “This Court had, on more than one occasion, condemned this practice of the trial court where examinations are deferred without sufficient reasons. We may refer here to some cases, which are State of U.P v. Shambhu Nath Singh (2001) 4 SCC 667; Ambika Prasad v. State (Delhi Admn.) (2000) 2 SCC 646; Mohd. Khalid v. State of W.B. (2002) 7 SCC 334.”

It is worth noting that the Bench notes in para 13 that, “As we have said cross examination can be deferred in exceptional cases and for reasons to be recorded by the Court, such as under sub-section 2 of Section 231 of CrPC1 but even here the adjournment is not to be given as a matter of right and ultimately it is the discretion of the Court. In State of Kerala v. Rasheed (2019) 13 SCC 297, this Court has set certain guidelines under which such an adjournment can be given. The emphasis again is on the fact that a request for deferral must be premised on sufficient reasons, justifying the deferral of cross-examination of the witness. As we could see from the records in the present case the cross examination of PW-2 was deferred precisely on grounds referred in sub-section (2) of Section 231 of CrPC. The defence requested to examine PW-2 with another prosecution witness (Vinod-PW-17). Yet the records of the case also reveal that though the cross-examination was deferred yet the other witness (PW-17) was examined much later, nearly a year after the cross examination of PW-2. We only wanted to record this cautionary note to make our point that this practice is not a healthy practice and the Courts should be slow in deferring these matters. The mandate of Section 231 of Cr.PC and the law laid down on the subject referred above must be followed in its letter and spirit. Thankfully, in the case at hand, the deferred cross-examination of PW-2 has not affected the course of the trial. This witness has remained consistent.”

It cannot be glossed over that the Bench notes in para 22 that, “In the case at hand, the defence has not been able to establish a case of private defence by any evidence. There is no evidence on this aspect and therefore this plea was rightly rejected by the Trial Court as well as the Appellate Court.”

Most forthrightly, the Bench points out in para 23 that, “In fact, the plea of self-defence taken by the accused/appellant is childish to say the least, in the light of the facts of the case, and on the weight of the evidence of the prosecution. The case of the defence that the deceased came to the Police Station ” unarmed” to kill the appellant knowing very well that the appellant was armed with a weapon is an awkward attempt to present the deceased as the aggressor. It does not make any sense. What is most important here is the eye-witness accounts of PW-2, PW-1, PW11 & PW-17, which prove that the appellant did not stop at the initial firing of the shot, which he had fired from a close range (the entry wound of gun shot with blackening). Instead, he continued to spray bullets on the deceased even when he was trying to escape. The eye witness accounts of four police personnels who were all present at the Police Station at that point of time, establish a case of murder beyond any reasonable doubt.”

It cannot be lost sight of that the Bench points out in para 24 that, “The defence again has not even been able to discharge its burden by showing that it is a case of grave and sudden provocation, though an attempt has been made by the defence to bring the case under Exception I to Section 300 IPC. There is however, nothing on record to show that the deceased hit the car at the gate of the Police Station, which was found parked inside that Police Station with no scratch on its body, thus disproving that it had hit the gate as was the case of the defence. Moreover, all the facts which have been placed before the Court show that it was the appellant who had a motive to kill the deceased as the deceased was having an illicit relationship with his wife. In spite of best efforts by the family members of the appellant and the deceased, the deceased continued with this relationship with the wife of the appellant. This was hence the motive for the appellant to kill the deceased.”

Briefly stated, the Bench states in para 25 that, “The appellant would argue that the Act attributable to him would fall under Exception 1 to Section 300 of the Indian Penal Code. In the present case on every possible count the case is nothing but a case of murder. The nature of weapon used; the number of gun shots fired at the deceased; the part of the body where gun shots are fired, all point towards the fact that the appellant was determined to kill the deceased. Ultimately, he achieved his task and made sure that the deceased is dead. By no stretch of logic is it a case of any lesser magnitude, and definitely not culpable homicide not amounting to murder. The facts of the present case do not even remotely make out any case under Exception 1 to Section 300 of the IPC, or under any other Exception(s) to Section 300 of IPC.”

Finally, the Bench then concludes by holding in para 26 that, “In view of the above, we are not inclined to interfere with the findings of the Trial Court and the High Court. Accordingly, this appeal is dismissed. The interim order dated 02.04.2012 granting bail to the appellant, hereby, stands vacated and the appellant is hereby directed to surrender before the trial court within four weeks from today. A copy of this Judgment shall be sent to the Trial Court to ensure that the appellant surrenders and undergoes the remaining part of his sentence.”

All told, there can be just no gainsaying that all the Trial Courts must definitely abide by what the Supreme Court has held so clearly in this leading case that the cross-examination of witness should be deferred only in exceptional cases and not as a matter of routine. At the cost of repetition, it must be said as stated initially that the Apex Court also laid bare that such delays due to granting of long adjournments may affect the fairness of the trial and even further also endanger the safety of the witness which cannot be allowed under any circumstances! No denying it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.