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2010 DIGILAW 317 (MP)

Hari Singh v. State of M. P

2010-03-17

K.S.CHAUHAN

body2010
JUDGMENT : This criminal revision under section 397 read with section 401 of the Code of Criminal Procedure has been preferred by the applicants being aggrieved by the order dated l3-11-2009 passed by the 1st Additional Sessions Judge, Sagar in ST No. 457/2008, whereby the application under section 311, Criminal Procedure Code filed by them has been rejected. 2. The brief facts of the case are that the applicants are facing trial for the offences punishable under sections 147, 148, 307/149, 302/149 of Indian Penal Code. The allegations are that these applicants along with other co-accused caused death of Lakhan and also attempted to cause death of Karan. During trial applicants moved an application under section 311, Criminal Procedure Code for recalling prosecution witnesses Hariram (PW-1), Dhanprasad (PW-2), Khuman (PW-3), Karan (PW-4) and Shyamlal (PW-5) on the ground that after recording their evidence some of them have filed affidavits denying the witnessing of the incident. Therefore they be recalled for further cross-examination. 3. Respondent resisted the said application on the ground that these witnesses have been cross-examined at length, therefore there is no necessary to recall them for further cross-examination. After hearing the arguments, the Court below rejected by application on 13-11-2009 which is assailed in this revision. 4. Shri Nitin Karan, learned counsel for the applicants submitted that Khuman, Karan and Shyamlal have given affidavits to the effect that they did not witness the incident and the names of the accused persons have been mentioned at the behest of Hariram Kotwar, therefore they ought to have been recalled for further cross-examination. In these circumstances the Court below has erroneously rejected the application which deserves to be set aside and direction be made to recall these witnesses for further cross-examination. 5. On the contrary, Shri V.P. Pandey, learned counsel appearing on behalf of respondent/State supported the impugned order passed by the Court below mainly contending that these witnesses have been cross-examined at length and there is no necessity to recall these witnesses. 6. Considered the rival contentions raised by learned counsel for the parties. 7. The main point for consideration in this revision is that whether the Court below has committed an illegality in rejecting the application under section 311, Criminal Procedure Code. 8. On perusal of the statements of Hariram (PW-1), Dhanprasad (PW-2), Khuman (PW-3), Karan (PW-4) and Shyamlal (PW-5) it reveals that they have been cross-examined at length. 7. The main point for consideration in this revision is that whether the Court below has committed an illegality in rejecting the application under section 311, Criminal Procedure Code. 8. On perusal of the statements of Hariram (PW-1), Dhanprasad (PW-2), Khuman (PW-3), Karan (PW-4) and Shyamlal (PW-5) it reveals that they have been cross-examined at length. Subsequently, after six months Khuman (PW-3), Karan (PW-4) and Shyamlal (PW-5) have filed their affidavits denying witnessing the incident. Thus these witnesses want to resile from their earlier statements wherein they have clearly deposed regarding the incident. 9. The Apex Court in the case of Yakub Ismailbhai Patel vs. State of Gujarat, AIR 2004 SC 4209 has held that once the witness is examined as a prosecution witness, he cannot be allowed to perjure himself by resiling from testimony given in Court on oath. 10. Since all these witnesses have given evidence that they have witnessed the incident but after six months by filing their affidavits want to change their earlier version perhaps colluding with applicants they cannot be permitted to do so. This is not a changed circumstance. It is not a ground to recall them for further cross examination. The Court below has rightly exercised discretion in rejecting the application. No fault can be found with the impugned order, hence does not call for interference. The revision is meritless and deserves to be dismissed. 11. Consequently, the revision fails and is hereby dismissed. Revision dismissed.