Supreme Court: Additional Witness Under Section 311 CrPC Can Be Examined as Prosecution Witness If Initially Missed by Prosecution

In a significant ruling dated April 28, the Supreme Court held that a person summoned under Section 311 of the Criminal Procedure Code (CrPC) may be examined as a prosecution witness if the court determines that the prosecution should have originally listed the individual but failed to do so due to oversight.

The bench comprising Justices Sudhanshu Dhulia and PK Mishra emphasized that the powers under Section 311 CrPC and Section 165 of the Indian Evidence Act are not only complementary but can be exercised at any stage of the trial—even after evidence has closed—either at the request of the parties or suo motu by the court. The objective behind these provisions is to ensure that the trial court is equipped with all relevant evidence required for a just adjudication.

The Court clarified that Section 311 CrPC grants wide discretion to trial courts to summon or recall witnesses to present the "best available evidence." It also pointed out that the nature of summoning a prosecution witness differs from that of a court witness—while a prosecution witness is subject to full cross-examination by the defence, the examination of a court witness is more controlled, and parties cannot claim an absolute right to cross-examine such witnesses without court permission.

Case Background

The observations came in a batch of appeals related to the infamous Kannagi-Murugesan honour killing case from Tamil Nadu, where an inter-caste couple—S. Murugesan, a Dalit engineering graduate, and D. Kannagi, a Vanniyar commerce graduate—were poisoned and killed by the girl’s family. The case, dating back to 2003, is among the earliest recognized honour killing cases in the state.

The couple had married secretly on May 5, 2003. When Kannagi's family discovered the marriage, they intercepted the couple on July 7, 2003, and forcibly administered poison to them. Their bodies were later burned to destroy evidence. Initial investigations by local police were found to be compromised, and the case was transferred to the Central Bureau of Investigation (CBI).

The Trial Court, in 2021, had sentenced Marudupandian (Kannagi's brother) to death and awarded life imprisonment to 12 others, including her father. The Madras High Court, in 2022, commuted Marudupandian’s sentence to life and confirmed the convictions of 10 others, while acquitting two.

The Supreme Court, while upholding the High Court’s judgment, rejected the argument that PW-49, Murugesan’s step-mother and an eyewitness, should not have been examined as a prosecution witness. Though she was not included in the original charge sheet, the CBI moved an application under Section 311 CrPC during trial, which the Trial Court accepted. The defence had objected, contending she should have been called as a court witness due to fears she might turn hostile.

However, the Supreme Court noted that when the court finds a witness ought to have been produced by the prosecution and was missed inadvertently, it has the authority to permit their examination as a prosecution witness, thereby following standard procedures of examination-in-chief and cross-examination.

The judgment also reiterated that courts cannot compel either party to summon a particular witness. But where justice demands, the court can exercise its own powers under Section 311 CrPC read with Section 165 of the Evidence Act to summon such individuals.

The bench relied on previous decisions, including Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374 and Jamatraj v. State of Maharashtra, to support its findings, especially on the limited right to cross-examine court witnesses and the procedural safeguards available to parties when such witnesses give prejudicial testimony.

Final Directions

The Court also ordered compensation of Rs 5 lakhs to be paid jointly to Murugesan’s father and step-mother.

Case Title: KP Tamilmaran vs State

SLP(Crl) No. 1522/2023 and connected matters

Counsel Appearances:

• Senior Advocates Siddharth Agarwal and Gopal Sankaranarayanan for the appellants

• ASG Vikramjit Banerjee for the CBI

• Advocate Rahul Shyam Bhandari for the parents of the deceased