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2006 DIGILAW 443 (RAJ)

Arvind Bhati v. State of Rajasthan

2006-02-08

H.R.PANWAR

body2006
Judgment H.R. Panwar, J.-This Criminal Revision Petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short the code hereinafter) is directed against the order dt. 06.01.2006 passed by Additional Sessions Judge (Fast Track) No. 1, Jodhpur (for short the trial Court hereinafter) in sessions case No. 101/2005 whereby the application filed by accused-petitioner under Section 311 of the Code was dismissed. Aggrieved by the order impugned, the petitioner has filed the instant revision. 2. I have hears learned Counsel for the parties. Perused the order impugned. 3. The accused-petitioner filed an application under Section 311 of the Code before the trial Court on 20.12.2005 seeking recalling of the witness PW . 14 Kishore Singh, whose statements were recorded by the trial Court on 23.08.2005 on the ground that PW . 14 Kishore Singh has filed an affidavit before the trial Court, which is on the record of the trial Court, wherein PW . 14 Kishore Singh has stated that he made the statement on the seduction of other persons on the ground of the character of the petitioner, who often used to consume the liquor. It was further stated that if the Court thinks appropriate, he may appear in the Court and make a true statement. It was further stated that the said affidavit has been sworn by him without there being any pressure and in sound disposing condition. The trial Court also noticed that the affidavit of witness PW . 14 Kishore Singh has been received by post on 212.2005 but it refused to recall the witness on the ground that in the affidavit, the witness has not stated that he made the earlier statement under the pressure. 4. Learned Counsel for the petitioner has relied on a decision of this Court in Moman Ram S/o Bhagwana Ram & Ors. vs. State of Rajasthan, 1997 (Supp.) CrLR 319 (Raj.) and submits that on identical facts, this Court recalled the witness. 5. This Court in Moman Rams case (Supra) has held as under:-"The affidavit along with application was submitted before the learned Additional Sessions Judge and he was requested to allow further cross-examination of Kulvinder Singh but the learned Additional Sessions Judge refused to exceed the prayer. 5. This Court in Moman Rams case (Supra) has held as under:-"The affidavit along with application was submitted before the learned Additional Sessions Judge and he was requested to allow further cross-examination of Kulvinder Singh but the learned Additional Sessions Judge refused to exceed the prayer. In view of Premia vs. State of Rajasthan, that there is no bar to the accused from exercising his right of cross-examination afresh, if the when the prosecution witness makes a further statement of fact prejudicial to accused then the learned Additional Sessions Judge was not right in rejecting the prayer. What will be the effect of such evidence, is to be appreciated at the time of writing the Judgment by the learned Additional Sessions Judge when such an affidavit has been filed and if cross-examination is not allowed , it will definitely cause prejudice to the accused." 6. The facts of the present case and the case of Moman Ram (Supra) are almost identical. In that case, one Kulvinder Singh was examined before the Additional Sessions Judge on 19.07.1996. In his statement, he stated that after sometime he heard noise from outside. He along with other person came out of the house. Then he saw the incident. He gave the details of even arms which were possessed by the accused-persons. He also stated that it was Tara Chand who fired at his father and his father fell down on the ground. However, Kulvinder Singh lateron got an affidavit attested on 30.08.1997, wherein he had stated that he did not see the incident. In his affidavit he had stated that his inner conscience has awakened and, therefore, he was giving the correct statement in the affidavit. 7. The case in hand is squarely covered by the decision of this Court in Moman Rams case (Supra). 8. Consequently, the revision petition is allowed. Order impugned dt. 06.01.2006 passed by the trial Court is set aside and it is directed that the trial Court shall recall the witness PW . 14 Kishore Singh and allow the accused-petitioner to cross-examine him to the extent of the facts given by him in the affidavit. 9. The Stay petition stands disposed of .