Chattisgarh High Court
Vishnu Pradhan vs State Of Chhattisgarh on 17 September, 2008
Author: T.P.Sharma
Bench: T.P.Sharma
HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Revision No. 619 of 2008
Vishnu Pradhan
...Petitioners
VERSUS
State of Chhattisgarh
...Respondents
! Shri P.K. Verma learned Sr.counsel with Shri
Raghvendra Verma for the applicant
^ Ms. Sangita Mishra P.L. for the respondent/State.
Honble Mr.T.P.Sharma,J
Dated:17/09/2008 : Judgment CRIMINAL REVISION UNDER SECTION 397(1) OF THE CODE OF CRIMINAL PROCEDURE (ORAL ORDER) (17 .9.2008) This revision is directed against the order dated 31.7.2008 passed by the Additional Sessions Judge, Ambikapur, in Sessions Trial No. 145/2007 rejecting the application filed by the accused/applicant for recalling the prosecutrix for examination holding that subsequent affidavit filed by the prosecutrix is not a ground for recalling the witness in accordance with section 231 read with 311 of the Code of Criminal Procedure.
2. The order is challenged on the ground that the trial Court has committed an illegality by rejecting the application of the accused/applicant for recalling the prosecutrix for examination.
3. Heard Shri P.K. Verma learned Sr. Counsel with Shri Raghvendra Verma for the applicant and Ms. Sangita Mishra PL for the respondent/State, and perused the FIR, affidavit filed by the prosecutrix and copy of the application for recalling the prosecutrix.
4. It is submitted on behalf of the applicant that prosecutrix Sarojini has been cross examined at length by the defence but after her examination she has filed an affidavit on 10.3.2008 stating that the applicant has not committed rape on her and she had filed the FIR under the pressure of the people of some Avgadh Asharam. It is argued that after filing of the affidavit by the prosecutrix, her re- examination has become necessary. Reliance is placed on the decision of the Apex Court in the matter of Mohd. Hussain Umar Kochra etc. v. Dalipsinghji and another etc. 1 in which it has been held that in the absence of an affidavit it is difficult to hold that there is change in circumstances especially relating to the witness who has been earlier examined by the prosecution.
5. On the other hand learned counsel for the respondent has supported the order impugned and argued that prosecutrix has been examined at length. Defence has also cross examined the witness at length; therefore, again calling her for re- examination would not be proper for just decision of the case.
6. In the instant case, the applicant is facing trial for the offence under section 376 of the Indian Penal Code. Prosecutrix was examined by the trial Court on 5.12.2007. She was cross examined by the defence at length on 10.3.2008. When the case was adjourned, the accused/applicant filed an application under section 231 of the Code of Criminal Procedure for re-examination of the witness. Thereafter, the prosecutrix filed an affidavit on 10.3.2008 stating therein that the applicant has not committed rape on her and she had lodged the report at the instance of some persons of the Avgadh Ashram. Section 231 of the Code of Criminal Procedure reads as under:
"Evidence for prosecution. (1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.
(2) The Judge may, in his discretion, permit the cross examination of any witness or witnesses have been examined or recall any witness for further cross examination."
7. Section 311 of the Code of Criminal Procedure gives power to the Court to recall any witness for examination. Relevant portion of Section 311 of the Code of Criminal Procedure reads as under:
". 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."
Under the second part of Section 311 of the Code of Criminal Procedure the Court is empowered to call and re-examine any witness if this appears to be essential for the just decision of the case. These provisions are not meant for filling the lacuna or to manipulate the evidence. Reliance is placed on behalf of the respondent/State on the decision of the Apex Court in the matter of Umar Mohammad and others V. State of Rajsthan 2 in which it has been held that after detailed examination in chief and cross examination of the witnesses recalling of the witnesses at the request of the defence shows that witness was won over by the accused persons and re-examination of such witnesses is not necessary for the just decision of the case.
8. This is not the case in which the accused/applicant has not effectively cross examined the witness but it is a case where accused wants to recall the witness for examination on the basis of her affidavit which has been filed on 10.3.2008. Order sheet dated 10.3.2008 (Annexure P-7) shows that firstly in the absence of witness the case was adjourned and the order for issuance of bailable warrant against some of the witnesses was passed but later an application under section 331 (probably 231) of the Code of Criminal Procedure was filed by the accused/applicant for recalling the prosecutrix on he basis of her subsequent affidavit filed on 10.3.2008. At the time of filing of application no affidavit was filed but it is after filing of such application the prosecutrix appeared in the Court and filed the affidavit. This shows that the prosecutrix did not appear before the trial Court voluntarily. Before filing of application for recalling the prosecutrix the accused/appellant was having the knowledge that the prosecutrix had prepared the affidavit and she would file in the Court. This fact is sufficient to draw an inference that the prosecutrix has not only been won over by the accused/applicant but she is completely in his grip. In the case of Mohd. Hussain Umar Kochra (supra) no affidavit was filed by the witness. But in the instant case before filing of the affidavit, the accused/applicant had filed the application for recalling of the witness on he basis of the affidavit which was filed subsequent to the filing of application. This shows that the prosecutrix has been won over by the accused and thus the facts of that case are distinguishable.
9. So far as the case in hand is concerned, ample opportunity for cross examination was given to the applicant under section 145 of the Evidence Act and they cross examined the complainant/victim at length. The petitioners have not shown any ground for recalling the witness for cross examination on the basis of her previous statement in accordance with the provisions of section 145 of the Evidence Act but he has filed an application for recalling the witness on the basis of her alleged subsequent affidavit. While dealing with the provisions of Section 311 of the Code for recalling the witness on the basis of subsequent affidavit, High Court of Punjab and Haryana in the matter of Jitender Vs. State of Haryana and others 3 has held that recalling of the witness on the basis of subsequent affidavit should not be permitted. Relevant portion of the said order reads thus:
"Therefore, when the defence presented applications before the trial court attaching affidavits of witnesses to the effect that they saw nothing and their statements before the trial court were false, it would not require much common sense to deduce that the defence or persons acting on behalf of the accused had contacted the witnesses, give them some allurement and obtained affidavits to be used to recall them and thereby scuttle the entire prosecution evidence. It is this cynical and perverse methodology adopted by the accused that should be cause of great worry for trial Courts. The petitioner has, in para 4 of the petition, pleaded that the affidavits of the witnesses "clearly spelt the death knell to the case of the prosecution".
Prosecution case must never be permitted to be knocked out in the manner that the petitioners have tried to do. To encourage the defence to contact witnesses after their statements had been recorded and to file affidavits of the witnesses to strike the "death knell to the prosecution" would make a mockery of the process of the trial and lead to loss of faith in the criminal justice system."
In a similar matter of Tahir and others Vs. State of U.P. 4 Division Bench of High Court of Allahabad has held that recalling of witness subsequent to conclusion of their evidence at the behest of accused on the basis of affidavits subsequently filed by them contradicting their previous statements made in Court would be in violation of section 145 of the Evidence Act. Relevant portion of the said decision reads thus:
"If the witnesses are recalled subsequent to the conclusion of their evidence in Court at the behest of the accused on the basis of affidavits subsequently filed by them contradicting their previous statements made in Court, it would be in violation of the provisions contained in S. 145, Evidence Act. We are afraid that if such a course is permitted perhaps there may be no end of any trial. It can also not be overlooked that the witnesses can be forced under threats or tempted and won over under pressure or for monetary gains to file affidavits subsequent to the conclusion of their evidence in Court, contradicting their previous statements and it could be so even after the cases reach the appellate stage. We are of the view that such a course cannot be permitted."
10. Complainant/victim was cross examined at length and it does not appear from her statement that she lodged the FIR against the applicant under the pressure of any person. As held in the case of Jitender Vs. State of Haryana and others (supra) and in the case of Tahir and others Vs. State of U.P. (supra), if recalling of the witness is permitted on the basis of subsequent affidavit, it would be in violation of the provisions contained in Section 145 of the Evidence Act.
11. Learned trial Court has rightly rejected the application filed by the accused/applicant for recalling the prosecutrix for examination. The order impugned does not suffer from any illegality or infirmity.
12. Accordingly, the revision being without substance is liable to be dismissed and it is hereby dismissed. Court below is at liberty to take suitable action against the prosecutrix for filing the affidavit and tendering the evidence contrary to the statement given by her earlier.
13. IA No.1 for stay stands disposed of.
Judge