Allahabad High Court
Kumher Singh Son Of Hakim Singh And Ors. vs State Of U.P. on 2 December, 2004
Author: Umeshwar Pandey
Bench: Umeshwar Pandey
JUDGMENT Umeshwar Pandey, J.
1. Heard Sri Krishna Kapoor, learned counsel for the revisionists, and the learned A.G.A. and perused the record.
2. This revision has been directed against the order dated 24.11.2004 passed by the Addl. Sessions Judge whereby the prayer for recall of prosecution witnesses Kali Charan (P.W.1) and Giriraj Singh (P.W.2) made by the revisionists/accused under Section 231(2) and 311 Cr.P.C has been rejected.
3. As the background facts reveal, the prosecution had examined the aforesaid two witnesses and their cross-examination had also been done way back in October 2003 and January 2004. Thereafter the accused moved application under the aforesaid provisions of the Code to recall those witnesses for further cross-examination on certain points not specifically mentioned questionwise in the said application.
4. The court below after: hearing both the parties found that the recall of those witnesses was not at all expedient in the interest of justice, but it would instead delay the proceedings of the trial when directions had already been issued by this court to the trial court vide order dated 31.10.2003 to conclude the trial expeditidusly and if possible within six months. As such having dealt with the matter in detail and after recording reasons, the court below has rejected the prayer of defence for further cross-examination of P.W.1 and P.W.2.
5. From the impugned order it is quite obvious that the trial is towards closure and that the defence had full opportunity and in fact had done the cross-examination of these witnesses at length. The witness Giriraj Singh was sought to be recalled for confronting him with his earlier statement given under Section 164 Cr.P.C. From the judgment of the court below it is evident that such previous statement : of Giriraj Singh was not recorded and, therefore, there does not arise any occasion for the accused to confront him with the said statement which is not in existence. A question was put by the defence to the Investigating Officer in his cross-examination if P.W. 2, Giriraj Singh. was earlier examined under Section 164 Cr.P.C. to which he has replied in negative and stated that he did not have the knowledge of such previous statement of that witness. So far as the statement under Section 164 Cr.P.C. of other witness Kali Charan (P.W.1) is concerned, he had already been earlier examined in the light of that statement given by him by the defence. Several questions on that statement have been put to this witness during the cross-examination. As regards the other points to be put in the further cross-examination to these witnesses, nothing specific was disclosed before the trial court and the questions were not formulated which are to be put to those witnesses. Otherwise also since the defence had cross-examined those witnesses at length on the opportunity already given to it, the court below appears to have rightly found that there was little justification for giving permission to further cross-examine these witnesses.
6. The learned counsel in support of his contention submitted that a witness could be recalled for further cross-examination and such right of the party should not be foreclosed by the court if a prayer is made for correcting certain errors. In this context he has relied upon the case of Rajendra Prasad v. The Narcotic Cell through its Officer-in-Charge, Delhi, 1999(3) Crimes 106 (SC).
7. The aforesaid case law in the first place does not apply to the facts of the present case because the recall of the witness in that case was sought by the prosecution to correct a mistake committed during the management/conduct of the prosecution before the court and it was treated by the Apex Court as reparable lacuna. In the second place, the accused/revisionists do not specifically disclosed, as to which are the particular points upon which the cross-examination of those witnesses was left by mistake of defence counsel. The witness Kali Charan (P.W.1) is shown to have been cross-examined and confronted with his earlier statement given under Section 164 Cr.P.C. at page 7 of his statement recorded before the trial court. A certified copy of the said statement was submitted by the learned counsel for the revisionists for the perusal of the Court and it discloses that the witness was confronted with his earlier statement said to have been recorded under Section 164 Cr.P.C. Obviously, after this piece of cross-examination of P.W.1 no further opportunity should be allowed to the defence to further confront him with the earlier statement under Section 164 Cr.P.C.
8. As regards the alleged earlier statement of the witness Giriraj Singh (P.W.2), it has come in the statement of Investigating Officer itself that he did not have any knowledge of there being a statement of that witness which was recorded before the Magistrate under Section 164 Cr.P.C. There is also no such statement or a copy of it on the record of the trial court. The case diary also does not contain any reference of such statement of Giriraj Singh (P.W.2). As such if there is no trace of statement, which is claimed by the defence, there was absolutely no occasion for the court below to permit the defence to cross-examine this witnesses and confront him with his such earlier statement.
9. On the aforesaid facts and circumstances, it appears that the learned trial court has very rightly rejected the prayer of the revisionists for further cross-examination of P.W.1 and P.W.2 and no material irregularity or legal infirmity is traceable in the impugned order for interference by this Court in its revisional jurisdiction. The revision, thus, lacks merits and is hereby dismissed.
10. It is, however, observed that in case the statement under Section 164 Cr.P.C. of Giriraj Singh allegedly recorded during the investigation is found out, the court may permit his further cross-examination by the defence and that would be limited only with reference to the witness's such earlier statement, Nothing more would be permitted to be questioned to this witness if at all he is recalled for that purpose.