The Madras High Court on Thursday rejected the Directorate of Vigilance and Anti Corruption’s (DVAC) plea to treat one of its witnesses in a disproportionate assets case booked against former DMK Minister K. Ponmudi and his wife as a “hostile witness” and consequently permit the prosecution to cross-examine him.
Justice G. Jayachandran, however, directed the trial court to take such a plea into account and also assess the credibility of the witness at the time of appreciating his evidence. He added that it would be open to the prosecution to express its disinclination to own the evidence of any of its witnesses.
The judge pointed out that the Code of Criminal Procedure permits the prosecution to examine its witnesses in chief and the accused to cross-examine those witnesses. The difference between them was that leading questions could not be posed to the witnesses during the examination in chief.
In so far as the present case was concerned, the DVAC had examined Swaminathan, a relative of Mr. Ponmudi as a prosecution witness. During such examination, the witness had feigned ignorance about sale of certain gold jewels and said that he was not aware as to whom and for how much those jewels were sold.
However, at the time of his cross-examination, he claimed to have initially sold 80 sovereign of jewels for a consideration ₹2.4 lakh and another 110 sovereign of jewels for ₹3.5 lakh and handed over the proceeds to his mother. This contradiction forced the DVAC to raise a plea for treating him as a hostile witness.
Court’s discretion
Objecting to his request, senior counsel R. Shunmugasundaram, representing the former Minister, contended that there was a difference between hostility and an unfavourable statement of a witness. He claimed that a witness could not be treated as hostile witness after the completion of cross-examination by the defence side.
After hearing both sides, the judge said it was up to the trial court to exercise its discretion under Section 154 of the Evidence Act and permit the prosecution to cross-examine its own witness depending upon the facts of individual cases and the materials to show that the witness was not speaking the truth and had gone back on his/her earlier statement.
In the case on hand, a Special Court for Prevention of Corruption Act cases in Villupuram had held that the deposition of Mr. Swaminathan during the cross-examination does not reflect any hostility. However, it had not prevented the prosecution from re-examining the witness, and therefore, the DVAC could always exercise that option, he added.
