The Kerala High Court on 18.02.2011 in Rajeevan Aswathy Vs. Superintendent of Police, 2011 (3) KLT SN 24 (C.No.26) : 2011 (1) KLJ 764 : 2011 (1) KHC 738 : 2011 (1) KLD 361 : 2011 CriLJ 2801 held that “the practice of the prosecution giving up a witness after the commencement of chief-examination and without tendering the witness for cross-examination is unhealthy, irregular and not warranted by law”.
Justice V. Ramkumar observed that “a witness can be given up before he enters the witness box. Even when a witness enters the witness box and oath is administered to him, it is not too late and he can be asked to withdraw from the witness box. But once chief examination is commenced, the party who calls him cannot give up the witness or withdraw him and thereby deprive the opposite party the right of cross-examination.
Supreme Court Decision on Witness
Section 138 envisages that a witness would first be examined-in-chief and then subjected to cross-examination and for seeking any clarification, the witness may be reexamined by the prosecution. There is no meaning in tendering a witness for cross-examination only. Tendering of a witness for cross-examination, as a matter of fact, amounts to giving up of the witness by the prosecution as it does not choose to examine him in chief.
There is no procedure whereby the prosecution is permitted to tender a witness for cross-examination only, without there being any examination-in-chief in relation to which, such a witness can be cross-examined. The effect of witnesses being tendered only for cross-examination amounts to the failure of the prosecution to examine them at the trial. Their non-examination seriously affects the credibility of the prosecution case and detracts materially from its reliability.