Effect of non-examination of all prosecution witnesses
The matter of examination of witnesses is within the discretion of counsel for prosecution—The Court while taking into consideration the fact of absence of witness should consider the prosecution case as a whole on the basis of available evidence while keeping in view the criticism about absence of witnesses.
The observations of Lord Porter in …..’Malak Khan vs. Emperor, ‘ AIR 1946 PC 16, furnish a good answer on the point. The learned Lord observed as follows: “It is no doubt very important that, as a general rule, all Crown witnesses should be called to testify at the hearing of a prosecution, but important as it is, there is no obligation compelling counsel for the prosecution to call all witnesses who speak to facts which the Crown desire to prove. Ultimately it is a matter for the discretion of counsel for the prosecution and though a Court ought, and no doubt will, take into consideration the absence of witnesses whose testimony would be expected, it must adjudge the evidence as a whole and arrive at its conclusion accordingly taking into consideration the persuasiveness of the testimony given in the light of such criticism as may be levelled at the absence of possible witnesses.” [AIR 1954 SC 31 : (1954) CriLJ SC 323]