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2000 DIGILAW 1214 (ALL)

Shanker Singh v. State of Uttar Pradesh

2000-09-12

U.S.TRIPATHI

body2000
Judgment U.S. Tripathi, J. (1) This revision has been directed against the order dated 9.8.2000 passed by Vth Additional Sessions Judge, Varanasi in Sessions Trial No. 520 of 1995, rejecting the application of the applicant for recall of Murlidhar Singh whose statement was recorded on 8.10.1997. (2) The applicant facing trial in Sessions Trial No. 520 of 1995 under Sections 302/307 IPC moved an application before the trial Court for recalling P.W. Murlidhar Singh on the ground that when the statement of witness was recorded co-accused Munna Bajarangi was not arrested and his case was not committed to the Court of Sessions. The case of Munna Bajarangi was committed to the Court of Sessions in July, 1999 for which Sessions Trial No. 157 of 1999 was allotted. Thereafter on 21.9.1999 evidence of Murlidhar Singh was recorded in the above ST No. 157 of 1999 in which he stated that he was knowing Abhishekh alias Guddu Yadav from before but not recognising the other accused and that he had also not seen injuries being caused on Sanjay Rai, therefore, the witness be confronted with his above statement under Section 145 Cr. PC. The learned Sessions Judge on hearing the learned Counsel for the parties held that Murlidhar Singh was examined and he was cross-examined by the learned Counsel for the applicant at great length. After a lapse of two years his statement was recorded in another case and some contradiction was necessary to occur and therefore, there was no sufficient ground for recalling the wit ness for further cross-examination. With these findings he rejected the application. Aggrieved with the above order, the applicant has come up in this revision. (3) Heard the learned Counsel for the applicant and the learned AGA. (4) The applicant wanted to recall (PW-1) Murlidhar Singh for confronting him from his statement in another Sessions Trial. A witness may be confronted from his previous statement under Section 145 Evidence Act which says that a witness may be cross- examined as to previous statement made by him in writing or reduced into writing, and relevant to matter in question, without such writing being shown to him, or being proved, but if it is intended to contradict him by the writing, his attention must before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. It is clear from the above Section that a witness may be confronted from his previous statement. In the instant case the applicant wanted to confront the witness from the subsequent statement in another case. (5) The learned Counsel for the applicant placing reliance on Single Judge decision of this Court in Sukhhan and another vs. State, 1987 AWC 138, contended that if a witness subsequently files his affidavit in contradiction of his previous statement in the Court he may be summoned afresh and confronted with his affidavit. In the said case the first informant was examined in the Court on 23.7.1986. During progress of trial an affidavit was placed on record of the case purporting to have been sworn by the same witness on 12.9.1986 saying that he had not seen the occurrence. An application for recalling the witness was moved. It was held that since affidavit was clearly in contradiction with his earlier stand taken on 23.7.1986 he should have been summoned afresh under Section 311 Cr. PC and confronted with the affidavit and given an opportunity to explain his behaviour. In the said case affidavit was filed by the witness in the same case saying that he had not seen the occurrence which was in total contradiction of his previous statement. In the instant case, the witness was sought to be confronted with his subsequent statement given in ST No. 157 of 1999 in which he stated that he was knowing Abhishekh alias Guddu Yadav and was not recognising the other accused by their face, but he was aware of their names. The witness also identified by the accused present in the Court by their names. This statement of the witness cannot be said in total contradiction of the previous statement nor had he filed affidavit denying the said fact in the Sessions Trial concerned. Therefore, facts of the above case are distinguishable with the facts of the present case. (6) Therefore, I find no illegality or irregularity in the order under revision. The revision is accordingly dismissed. Revision dismissed.