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2016 DIGILAW 761 (ALL)

Veer Pal v. State of U. P.

2016-03-02

KARUNA NAND BAJPAYEE

body2016
JUDGMENT : Karuna Nand Bajpayee, J. 1. Heard learned counsel for the applicant and learned AGA. 2. This application under section 482 Cr.P.C. has been filed seeking the quashing of order dated 21.01.2016 passed by learned court below rejecting the application moved on behalf of the accused under section 311 Cr.P.C. in Case Crime No. 1007 of 2012 (State v. Veer Pal and another, under sections 147, 302, 34 IPC, P.S. Kasana, District Gautambudh Nagar in Criminal Trial No. 248 of 2013) which had sought the recall of the witness for further cross examination. Submission of the counsel is that subsequently after the witness had been examined in the court, he the O.P. No.2, was also examined in another proceeding and in that proceeding he has given certain statement which was not in consonance with his earlier deposition and, therefore, witnesses ought to have been recalled for further cross-examination in the context and perspective of his another deposition which he subsequently gave in another proceeding. Submission is that refusal by the court to recall the witnesses is, therefore, bad in the eyes of law. 3. Heard learned AGA and perused the impugned order. 4. First of all it may be observed that witness may be cross-examined in order to impeach his testimony with regard to his previous statement and not with regard to the statement which he might give subsequently after having being examined in the court. This process can possibly never end and witnesses may go on giving many statements contrary to the facts about which they have already stated in the court. If before being examined in the court witness had given statements which were contradictory in nature, then he can always be cross-examined with regard to it and his attention may be drawn to the same and he may be confronted under section 145 of the Evidence Act with such previous contradictory statements. If before being examined in the court witness had given statements which were contradictory in nature, then he can always be cross-examined with regard to it and his attention may be drawn to the same and he may be confronted under section 145 of the Evidence Act with such previous contradictory statements. It would be useful to cast a glance on Section-145 of Indian Evidence Act in this regard which reads as follows : 145 : Cross-examination as to previous statements in writing.-A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters 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." 5. It shall also be relevant to keep in view Section-155 of Indian Evidence Act which reads thus : "155 : Impeaching credit of witness.- The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him :- (1) …................. (2) …................ (3) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted" 6. A combined reading of aforesaid two sections would be sufficient to clarify the position of law in this regard. The credit of a witness may be impeached by proof of the earlier inconsistent statements which he might have given in that context to someone. If such in-congruent or inconsistent statements have been reduced to writing then before such writing may be proved in the court, the attention of the witness shall have to be drawn to such contradictory versions. It is so apparent that when a witness is being examined in the court there is no question to cross-examine him with regard to his future statements which he has not yet given. Apart from this as has already been said that if subsequently after the deposition of witness is over, he gives at different forums any other statement incompatible with his earlier deposition in the court, it is so very difficult to know or guess the possible reasons behind the same. Apart from this as has already been said that if subsequently after the deposition of witness is over, he gives at different forums any other statement incompatible with his earlier deposition in the court, it is so very difficult to know or guess the possible reasons behind the same. If the witness shall be called back to explain such incompatibilities he may offer some kind of explanation or the other in this regard. But thereafter again after leaving the court he may give yet further inconsistent statements. Such kind of situation would lead the courts in utter wilderness and might even result in an anarchic situation. There is no other option for the courts than to proceed according to the procedure established by law. In fact such kind of practise is not unknown to our experience that often after the deposition of a witness is over, attempts are made to placate him and persuade him to write letters to his relatives saying and expressing feelings of remorse for having testified falsely in the court under pressure. Such letters are dictated at the behest of accused and then after procuring them they are produced in the court in order to persuade the court to once again recall the witness. Such a contrivance is resorted to only to create an opportunity for the witness to go back on his words and resile from his deposition given in the court earlier. Out of court compromises are not unknown and is in fact a common phenomenon now. But when such compromise takes place after the witnesses have already been examined, it becomes a difficult task to make use of the same. It is therefore just in order to prove equal to such a situation that various methods are innovated to any how facilitate the recalling of the witnesses in the court. This court does not feel required to give many such illustrations and it is not needed to further elaborate upon the same. It shall suffice to observe that the courts should be vigilant about all the facts and circumstances of the case and should not fall easy prey to such chicanery. This court does not propose to enter into the factual incompatible statements which are being said to have been made subsequently by the witness and the possible reasons or the explanation for the same. This court does not propose to enter into the factual incompatible statements which are being said to have been made subsequently by the witness and the possible reasons or the explanation for the same. Whatever may be the reason and whatever may be the context in which such inconsistent statements have been made subsequently, this Court is of the considered view that there is no legal sanction to justify the recalling of such witness on the ground of such reasons as are being shown on behalf of the accused. 7. Apart from this we should also not loose sight of the fact that the power under section 311 Cr.P.C. is not meant for recalling a witness for the purpose of cross-examination. Section 311 Cr.P.C. empowers a court to recall a witness for the purpose of re-examination and not for cross-examination. Recalling and re-examining the witness can be done at the instance of the party which has already examined the witnesses. Re-examination cannot be done by the adverse party who can only cross-examine the witness. It shall be germane to keep in sight the unambiguous language of Section 311 of Cr.P.C. in this regard which reads as follows: 311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 8. The plain language of the section does not admit of any scope of equivocal interpretation about the same. Only the recall and reexamination of a witness has been contemplated by the aforesaid Section 311 of the Criminal Procedure Code and not the cross-examination. Though it is not needed to elaborate upon the distinction between re-examination and the cross-examination but in order to clinch the issue and underline this aspect it shall not be out of place to quote the relevant Section 137 of Indian Evidence Act in this regard which reads as follows:- 137. Examination-in-chief.-The examination of a witness by the party who calls him shall be called his examination-in-chief. Examination-in-chief.-The examination of a witness by the party who calls him shall be called his examination-in-chief. Cross-examination.-The examination of a witness by the adverse party shall be called his cross-examination. Re-examination.-The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination. 9. Now a combined reading of Section 311 Cr.P.C. and the aforesaid Section 137 of Indian Evidence Act should be just sufficient to dispel any such confusion between the terms "recall and re-examination of a witness" and the "cross-examination of a witness." 10. In view of the aforesaid discussions when this court adverted to the impugned order it does not seem to reflect any such illegality or perversity, much less than any abuse of courts process, which may call for and any interference by this court. The order reflects the judicial application of mind and the court below has correctly taken note of the fact that the witness has not only been cross-examined already but the trial is also at a culminating stage. 11. The application lacks force and therefore, stands dismissed. Petition dismissed.