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2018 DIGILAW 397 (ORI)

DOLAGOVINDA PRADHAN v. STATE OF ODISHA

2018-04-10

S.K.MISHRA

body2018
JUDGMENT : S.K. Mishra, J. - The petitioners, being the accused in S.T. Case No. 240 of 2012 assail the order dated 28.02.2017 passed by the learned Assistant Sessions Judge, Cuttack, whereby application filed by the prosecution to recall P.W.7 was allowed. 2. Initially, the petitioners were charge-sheeted for the offence under Sections 147, 148, 294, 307, 506, 379, 354 and 427/149 of the IPC in the aforesaid case. After examination of certain witnesses, the charge was altered and additional charge under Section 216 IPC was added. Thereafter, the Court recalled all the witnesses for further cross-examination on the additional charge. P.W.7 was examined on recall and it is the case of the informant as well as the case of the prosecution that the said witness presumably resiled from the stance he has taken while giving statement before the police and recorded under Section 161 Cr.P.C., 1973 the examination in-chief and the cross-examination that immediately followed. Therefore, they filed an application to recall P.W.7 for further cross-examination by the prosecution by declaring him hostile witness. The petition was allowed. The learned Sessions Judge took into consideration the settled principles of law that a petition under section 154 of the Indian Evidence Act is maintainable even after cross examination of witness by the defence when he supported the prosecution case in-chief but resiles from such stance in the cross-examination. That direction lies with the Court to permit the person, who calls a witness to put leading questions as the circumstances demand. The learned counsel for the petitioners argues that as per the procedure laid down under Section 138 of the Evidence Act, the examination in-chief is to take first, then the cross-examination has to be made and if any new material has come out, then the cross-examination has to be made and if any new material has come out, then the party calling the witness may have re-examined the witness. It is argued by the learned counsel for the State, the intervener and the Amicus Curie relying upon certain judgments of different Courts that section 154 of the Indian Evidence Act can be invoked by the Court at any stage. It is appropriate to take note the exact words used in section 154 of the Indian Evidence Act. It reads as follows: "154. It is appropriate to take note the exact words used in section 154 of the Indian Evidence Act. It reads as follows: "154. Question by partly to his own witness.- The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.- 2[(2) Nothing in this section shall disentitle the person so permitted under Sub-section (1), to rely on any part of the evidence of such witness," 3. A plain reading of the aforesaid provision manifestly makes it clear that it does not specify the stage at which a party, who calls a witness, shall be allowed to put such questions, which were allowed to be put to the witness in cross-examination, by the adverse party. Section 154 of the Evidence Act is the enabling section recognizing the jurisdiction of the Court to allow a party to cross-examine his own witness. It is apparent from the provision itself that the legislature in its wisdom has not put any restriction on the exercise of power under Section 154 of the Act as well the Court cannot read into the Section 154 of the aforesaid act and restrict the scope of the same by virtue of section 137 of the Indian Evidence Act. 4. In the case of Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 , the Hon'ble Supreme Court has held that merely because a witness in an unguarded moment speaks the truth which may not suit the prosecution or which may favourable to the accused, the discretion to allow the party to cross-examine itself cannot be allowed. The Hon'ble Supreme Court further held that a witness is liable to be examined by the party calling him when the Court is satisfied the witness bears hostility against the petitioner for whom he is deposing or he does not appear to be willing to tell the truth. The Hon'ble Supreme Court further held that in order to ascertain intention of the witness of his conduct, the judge concerned may look into the statements made by the witness before the I.O. or the previous authorities to find out as to whether or not there is any indication of the witness making a statement inconsistent on a most material point with the one which gave before the previous authorities. The Court must however, distinguish between a statement made by the witness by way of unfriendly act and one which lets out the truth without any hostile intention. At para-17 of the aforesaid judgment, the Hon'ble Supreme Court further recognizes the difficulty to lay down a rule of universal application as to why the Court will be entitled to exercise it discretion under section 154 of the Indian Evidence Act and matter depends on the facts and circumstances of each case and satisfaction of the Court on the basis of those circumstances. Broadly, however, this much is clear that contingency of cross-examining the witness by the party recalling him is an extra-ordinary phenomenon and permission in a specific case. Before a Court exercises discretion in declaring a witness hostile, there must be some material to show that the witness has gone back on the earlier statement or is not speaking the truth or has exhibited an element of hostility or changed side and transferred his loyalty to the adversary. The Court before permitting the party calling the witness to cross-examine must scan and weigh the circumstances properly and should not exercise its discretion in a casual or routine manner. 5. Having applied this principle to the case at hand, this Court takes into note that the P.W.7 has supported the prosecution in his statement under Section 161 Cr.P.C., 1973 recorded by the I.O. He was examined in-chief and in-chief he stood by the version he has taken in course of investigation while being examined in chief and also cross-examined at the first instance but not on recall. He has totally ignored that aspect of the case and has completely stated things, which are contrary to his earlier statement made in the statement before the I.O. and examination in-chief. It is settled principles of law that a clever witness may support the prosecution in examination in-chief and later on being gained over may deliberately make certain mistakes, which would demolish of prosecution case. In such a case, it is open by the prosecution to recall the witness for re-examination and in the process cross-examine him. It is settled principles of law that a clever witness may support the prosecution in examination in-chief and later on being gained over may deliberately make certain mistakes, which would demolish of prosecution case. In such a case, it is open by the prosecution to recall the witness for re-examination and in the process cross-examine him. So, having weighed the facts and circumstances of the case as well as the statement of witness in question with regard to the discussion made above I am of the view that the order passed by the learned Assistant Sessions Judge Cuttack on 28.02.2017 in S.T. Case No. 240/2012 is not in any way erroneous requiring correction. 6. Hence, I am not inclined to interfere in the matter and hence. CRLMC is dismissed being devoid of any merit.