Date: 04-05-2019
Business: Adv. Abhijit Mahadeokar for Plaintiff no.2 present.
Adv. Niket Jani for defendants present.
He tendered original NM no.1735/19 t.o.r.
K.B.
L.O.
Adv. Harmit Trivedi for Defendant present.
Say filed by Adv for Plaintiff no.2 on NM.
Heard arguments of both sides.
K.B.
L.O.
Order below Notice of Motion No.1735 of 2019.
Notice of motion is taken out by defendants for re-examination of D.W.1 G.D.Agrawal for the purpose of explanation of certain ambiguities which have crept in during the course of his cross examination. It is contended that on conclusion of commission for cross examination, the Advocates for defendants reserved their right to re-examine D.W.1. Accordingly, it is prayed that notice of motion be allowed.
Advocate for Plaintiff no.2 mentioned on notice of motion that he leave it to the orders of this Court.
Heard respective counsel for parties.
During the course of arguments, Ld.Advocate for defendants drawn my attention to question No.9 of cross examination of D.W.1 to point out that as it was asked to D.W.1 as to who is Mrs. Rajani Gawade instead of mentioning correct name of Plaintiff no.2 as Rajanigandha Mohan Gawade, confusion has caused in the minds of D.W.1 and he answered that he does not know any Rajani Gawade. He further submitted that in order to explain that piece of evidence it is necessary to grant permission for re-examination of D.W.1. He placed reliance upon authority in the case of Vinod Kumar V/s State of Punjab (2015) 3 SCC 220 wherein Hon\''ble Apex Court referred some passages from the authority in the case of Rammi V/s State of M.P. (1999) 8 SCC 649 wherein after referring to Section 138 of the Evidence Act, Hon\''ble Apex Court held thus,
17. There is erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when the ambiguity remains regarding any answer elicited during cross examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross examination.
18. Even if the Public Prosecutor feels that new matters should be elicited from the witness he can do so, in which case the only requirement is that he must secure permission of the court. If the court thinks that such new matters are necessary for proving any material fact, courts must be liberal in granting permission to put necessary questions.
Although said matter has arisen out of criminal case but the principle for grant of permission for re-examination laid down in the said authority, is to be considered. It seems that as the name put up to the D.W.1 is only Mrs.Rajani Gawade. So, witness answered that he does not know any Rajani Gawade. Therefore, D.W.1 by re-examination wants to give explanation in that respect. It is pertinent to note that name of Plaintiff no.2 is Rajanigandha Mohan Gawade. So because of answer given by the D.W.1 as pointed above, there should not be any ambiguity as to Plaintiff no.2 is known to D.W.1 or not and his explanation would clarify the same. Therefore, in view of ratio laid down in cited authority, I am inclined to grant permission for re-examination of D.W.1 G.D.Agrawal. Hence, pass following order.
ORDER
1. Notice of Motion No.1735 of 2019 is allowed and made absolute in terms of prayer clause (a).
2. Defendants are permitted to re-examine D.W.1 G.D.Agrawal on the aspect of ambiguity as pointed out in the observations made above and after re-examination of D.W.1 is over, Plaintiffs are at liberty to cross examine him.
3. Accordingly, Notice of motion is disposed off.
Adj for R/E to 07.06.2019.
Nature Of Disposal: ALLOWED
Disposal Date: 04-05-2019
