A single bench of Justice Ravindra Maithani of Uttarakhand HC allowed the revision application and set aside the impugned order because the court below admitted the testimony of the witnesses without offering the opportunity of cross-examination.
Facts:
The challenge in this revision is made to the judgment and order dated 20.12.2019, passed in Case No. 111 of 2018, Kamarjahan and Others Vs. Kurban Ali, by the court of Principal Judge, Family Court, Haridwar (“the case”). By it, an application filed under Section 125 of the Code of Criminal Procedure, 1973 (“the Code”), filed by the respondent no.2, has been allowed and the revisionist was directed to pay Rs. 5,000/- per month as interim maintenance to the respondent no.2.
It appeared from the record that the court on 23.09.2019, directed that notice be issued to Raju Aggarwal, J.P. Manaria and Aklakh Ahmed, with regard to a nikahnama. They all appeared as Court Witnesses on 09.10.2019 and their depositions was recorded. In the impugned judgment, the court has made reference to the statements given by them.
Learned counsel for the revisionist as well as for the respondent no.2 submitted that both of them did not get any opportunity to crossexamine all these three witnesses. The statements of these three witnesses are on record. It is examination-in-chief.
Observations of the Court
The court observed that in so far as the examination of a witness is concerned, it does not become complete without offering an opportunity of cross-examination to the parties. Section 138 of the Indian Evidence Act, 1872, makes provision with regard to order of examination. In the instant case, CW1 Raju Aggarwal, CW2 J.P. Manaria and CW3 Aklakh Ahmed were not offered for cross-examination to the parties. It makes the statements of these three witnesses incomplete.
It cannot be termed as evidence, but the court below considered the statements given by these three witnesses as evidence. The statements were, in fact, inadmissible evidence without cross-examination. In view of it, this Court was of the view that the court below did take into consideration inadmissible evidence for arriving at a conclusion. It vitiates the impugned judgment and order.
Decision:
The revision application was allowed and the impugned order was set aside. The court below was directed to summon these three witnesses, namely CW1 Raju Aggarwal, CW2 J.P. Manaria and CW3 Aklakh Ahmed, once again and offer an opportunity of cross-examination to the parties.
Case: Kurban Ali vs State of Uttarakhand and another
Citation: Criminal Revision No. 133 of 2020
Coram: Justice Ravindra Maithani
Dated: 22.11.2022
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