JUDGMENT 1. - Appellant Kalu Ram has been convicted Under section - 302 of the Indian Penal Code and sentenced to undergo life imprisonment with Rs. 500/- as fine for causing the death of his mother-in-law Mirgha. He has also been convicted Under section 307 of the Indian Penal Code for having attempted to murder his wife Rukma. 2. On 19.4.1987 at 2.15 a.m. a report was lodged in Police Station Muklava District Sriganganagar by PW 3 Lalchand that at about 1.30 a.m. on that day when he himself, his mother Mirgha, his sister Rukma and Rukma's husband Kaluram, the appellant, were sleeping in the same house Kalu Ram assaulted his mother with an Axe while she was lying on a cot. When Rukma tried to intervene she was also assaulted. When Rukma and Lalchand raised alarm the appellant ran away from the spot. After investigation the appellant was prosecuted, convicted and sentenced as above. 3. The prosecution has examined PW 2 Rukma and PW 3 Lalchand as eye-witnesses, and PW 4 Bhajanlal and PW 5 Udaram as witnesses who were approached immediately after the incident by Lalchand. The other witnesses examined were the Investigating Officer, Medical Expert and a constable. 4. PW 2 Rukma in her examination in chief stated that when she was sleeping with her mother and her brother in their house, her husband Kalu Ram who was also sleeping in the other part of the house inflicted axe blows on the forehead of her mother. On hearing the noise she herself and her brother got up and in their presence Kalu Ram inflicted three axe blows to the deceased. Then she fell down over her mother and she also received an axe injury in the back. On raising alarm Kalu Ram ran away. Bhajanlal and Udaram came on tire spot on being called by her brother. Then her brother went to the Police Station in the night to call the police. In her cross-examination she stated that earlier she was sleeping on a separate cot at the place where her husband was sleeping, but then during night had shifted to the place where her brother and mother were sleeping. She admitted that there was darkness all around, but because Kalu Ram was her husband she could recognise him in the darkness. In her cross-examination she stated that earlier she was sleeping on a separate cot at the place where her husband was sleeping, but then during night had shifted to the place where her brother and mother were sleeping. She admitted that there was darkness all around, but because Kalu Ram was her husband she could recognise him in the darkness. She further stated that Kalu Ram was arrested in the morning of the night during which the incident had taken place. When confronted with her statement Under section 164 Criminal Procedure Code she denied having told the Magistrate that the weapon of offence was `Gurali' according to her she had even then stated that the weapon was a `Kulhadi'. She also stated that there was no axe in their house and she did not know from where Kalu Ram brought the axe. She also stated that her brother went to the Police Station and came back within five minutes with the police. Then a jeep was brought and in that jeep she herself and her brother came to Mandi Raisinghnagar alongwith the police. Then her brother and the policemen went in a jeep and brought her two brothers from 22 P.T.D. At 4.00 a.m. they had come to Raisinghnagar. Her brother went to his village for disposing the dead body of the mother at about 6.00 a.m. The witness admitted that there was a dispute regarding refund of money borrowed by her mother from Kalu Ram and conveying agriculture land to Kalu Ram in lieu of that money. 5. PW 3 Lalchand deposed that at about 1.30 a.m. when he himself, his sister Rukma and mother were sleeping in the Courtyard of their house his brother-in-law Kalu Ram assaulted his mother with an axe. On hearing cries of the deceased he himself and his sister got up and in their presence two, three axe blows were given by Kalu Ram to Mirgha the deceased. Rukma tried to intervene by falling down on the deceased, but she was also assaulted with the axe. The witness then ran to Udaram and with Udaram went to Bhajanlal. They told him to report the matter to the police and he accordingly rushed to the Police Station and lodged the report. In his cross-examination he denied that his sister was sleeping with Kalu Ram. The witness then ran to Udaram and with Udaram went to Bhajanlal. They told him to report the matter to the police and he accordingly rushed to the Police Station and lodged the report. In his cross-examination he denied that his sister was sleeping with Kalu Ram. He contradicted Rukma on the point of there being a separate cot for Rukma near the cot of Kalu Ram. He stated that within half an hour of the lodging of the report he had reached the spot again with the police. He also stated that Kalu Ram was arrested on the same day at Raisinghnagar and then he was brought to Police Station Muklawa. He further stated that he himself, the SHO, Udaram and Bhajanlal were tracing the foot prints when the axe was found in a bush and the SHO took the same with him. The axe was according to him recovered on the same day. 6. These two witnesses were recalled for cross-examination and were subjected to further cross-examination in very peculiar circumstances. On 16.5.1989 the prosecution declared its evidence closed. After a couple of dates on 30.5.1989 the statements of accused Under section 313 of the Criminal Procedure Code were recorded. Thereafter the case was fixed for arguments on 13.6.1989, 19.6.1989, 26.6.1989, 4.7.1989 and 15.7.1989. Adjournments were sought by the parties on all these dates. On 15.7.1989 an application was filed by the counsel for the accused for recalling prosecution witnesses Rukma and Lalchand. In the application it was stated that the accused was in jail and a counsel was appointed for him by the Court. The FSL report was filed in the Court after the evidence of main prosecution witnesses and a copy of the FSL report was also not given to the accused person. It was further stated that because the accused was in jail the counsel appointed for him by the Court could not get instructions on facts from him and for this reason many important questions could not be asked in the cross-examination of witnesses Rukma and Lalchand. In these circumstances it was submitted that witnesses Rukma and Lalchand be recalled for cross-examination. The Court did not record any reason for allowing the prayer and passed an order recalling the prosecution witnesses Rukma and Lalchand. In our opinion, it was not proper for the learned Addl. In these circumstances it was submitted that witnesses Rukma and Lalchand be recalled for cross-examination. The Court did not record any reason for allowing the prayer and passed an order recalling the prosecution witnesses Rukma and Lalchand. In our opinion, it was not proper for the learned Addl. Sessions Judge to have allowed an application for recall of witness in such a cavalier fashion. The power of recall and re-examination of witnesses already examined has to be exercised only on the Court reaching a conclusion that recall of such a witness is essential for the just decision of the case. Such recall cannot be ordered for the asking. To our mind there was no good reasons justifying the order of recall of these witnesses. It is obvious that the witnesses were sought to be recalled for wiping out the testimony already given by them. The learned Addl. Session Judge has not put even the date on which the witnesses were recalled and further cross-examined, but according to the proceedings both the witnesses were re-called and further cross-examined on 31.7.1989. Rukma in her further cross-examination stated that there was darkness all around and the atmosphere was cloudy on the night of the incident. She stated that she only guessed that the assailant was Kalu Ram and she was told by her brother in the hospital that Kalu Ram had assaulted their mother. She also went on saying that Kalu Ram was arrested in the morning from the hospital when he had come there to enquire about her. She further stated that she did not see any blood stains on his clothes. It was obvious that the witness had totally resiled from her earlier statements presumably, because of a patch-up between the parties. Similar is the case with the statement of Lalchand PW 3. In his further cross-examination after recall he stated that there was darkness all around. There was no source of light and he had only guessed that the assailant was Kalu Ram. He further stated that when he returned with the police Bhajanlal told him that the assailant was Kalu Ram and that is how he guessed that Kalu Ram was the assailant. He went to the extent of saying that he had given written report on a plain paper to the police and he had not even signed that when it was tendered. He went to the extent of saying that he had given written report on a plain paper to the police and he had not even signed that when it was tendered. According to him he signed the FIR when he went to the Police Station back in the afternoon. He also stated that even before signing the FIR the axe had been recovered. He also stated that constable Om had arrested Kalu Ram in the hospital when he had come to meet them and Kalu Ram was taken to the Police Station from there and the witness also accompanied him to the Police Station. He further stated that he did not see any blood stains on the clothes of Kalu Ram. He also stated that the clothes of Kalu Ram were mixed up in a bag containing blood stained clothes of the deceased and Rukma. Obviously, the witness on recall was trying to help the accused person and made statements completely contradictory to what he had stated earlier. 7. The question is as to whether these two witnesses can be said to be reliable in view of the testimony after their recall. To our mind if order recalling the witness is unjustified, the statements recorded after the recall could be ignored treating them not to be a part of the record. It would be a total abuse of the process of the Court if the parties and witnesses are allowed to over-reach the Court and suppress the truth by changing their version like this. The witnesses were sought to be recalled on the excuse that the FSL report was filed in the Court subsequently to recording of their statements. The other spacious excuse was that since the accused-appellant was unrepresented and was provided legal aid by the Court, his counsel could not take proper instructions from him, and, therefore, certain important questions were not put to the witnesses. This meant that certain questions having a bearing on the FSL report and certain fresh questions which remained to be put in the original cross-examination were to be put to the witnesses, but actually what happened before the Court on recall is that the witnesses totally surrendered to the cross-examining counsel and willingly made statements which were directly contradictory to the earlier statements made them. This is a sheer abuse of the process of the Court. This is a sheer abuse of the process of the Court. If we permit, this that would be nothing short of allowing the non-compoundable case to be rendered compoundable by the parties outside the Court by adopting the subterfuge of recalling the witnesses Under Section 311 of the Criminal Procedure Code. For these reasons we reject the evidence laid after the recall of the witnesses and hold that further cross-examination after recall cannot be read as evidence and the case will have to be decided without taking into account the statements in cross-examination of these witnesses after recall. 8. Learned counsel for the appellant submitted that it was clear from the evidence on record that the FIR was lodged after investigation, that even the weapon of offence was recovered earlier than the lodging of the FIR and that the assailant could not have been seen in the darkness. PW 2 Rukma and PW 3 Lalchand both have said that Kalu Ram was arrested by the Police on the same day, whereas according to Investigating Officer and the memorandum of arrest he was arrested at 6.00 p.m. on 23.4.1987. PW 3 Lalchand stated that the axe was found in the bushes when they were following the foot-prints, whereas the prosecution case was that the axe was recovered at the instance of the accused. PW 4 Bhajanlal and PW 5 Udaram, the supporting witnesses have turned hostile. There is also force in the contention that in the darkness the assailant could not have been recognised, though they are close relatives and Rukma PW 2 has stated that though it was darkness she could recognise her husband even in darkness. There is also force in the contention that because the parties were at loggerheads because of borrowing of money by the mother-in-law and not conveying the property agreeing to be conveyed in lieu of it to the appellant, there was possibility of false implication. Actually, the plea of the appellant in his statement Under Section 313 Criminal Procedure Code was of implication because of suspicion also. He has also stated that the deceased was engaged in prostitution and, therefore, she had several enemies and the possibility was that one of such persons might have done her to death. 9. For the aforesaid reasons we find that the conviction cannot be sustained. The prosecution has failed to prove the charge beyond reasonable doubt. He has also stated that the deceased was engaged in prostitution and, therefore, she had several enemies and the possibility was that one of such persons might have done her to death. 9. For the aforesaid reasons we find that the conviction cannot be sustained. The prosecution has failed to prove the charge beyond reasonable doubt. We, therefore, allow the appeal, set aside the conviction and sentence and acquit the appellant. He shall be released forthwith if his detention is not required under any other lawful order.Appeal Allowed. *******