Mustafa vs State of Karnataka

H. Billappa, J.—The petitioner has filed this petition challenging the order dated 3.3.2016 passed by the VI Addl. District & Sessions Judge, D.K. Mangaluru, in S.C.No.41/2012.

By the impugned order, the Trial Court has rejected the application filed by the petitioner under section 311 of Cr.P.C. praying to recall PW-6 for further cross examination.

Aggrieved by that, the petitioner has filed this petition.

Briefly stated the facts are:

The petitioner is accused No.1 in S.C. No. 41/12 on the file of the VI Addl. District & Sessions Judge, D.K., Mangaluru. The prosecution has led its evidence. The statement of the accused under section 313 of Cr.P.C. has been recorded. Thereafter, the petitioner has filed application under section 311 of Cr.P.C. praying to recall PW-6 i.e., the victim. The Trial Court by its order dated 3.3.2016 has rejected the application. Aggrieved by that, the petitioner has filed this petition.

The learned counsel for the petitioner contended that the impugned order cannot be sustained in law. He also submitted that some important points were left out and therefore, the petitioner wanted to cross examine the victim i.e., PW-6. The Trial Court was not justified in rejecting the application. Further, by imposing reasonable cost, the petitioner may be permitted to cross examine PW-6.

As against this, the learned Government Pleader supported the impugned order.

I have carefully considered the submissions made by the learned counsel for the parties.

It is relevant to note, the petitioner is accused No.1 in S.C.No.41/2012. PW-6 is the victim. She has been fully examined and cross examined on 5.9.2015. Thereafter, the statement of the accused under section 313 of Cr.P.C. has been recorded and case is posted for arguments on 25.1.2016. At that stage, the petitioner has filed an application on 12.2.2016 to recall PW-6. In the application, it is stated that some important points were not touched. The impugned order shows that the victim i.e., PW-6 was fully examined and cross examined on 5.9.2015. Thereafter, the statement of the accused under section 313 Cr.P.C. is also recorded. The Trial Court taking into consideration that PW-6 was fully examined and cross examined and that the application was filed at the stage of arguments and relying upon the decision of the Hon''ble Supreme Court reported in 2008(4) Crimes 192 (SC) and 2010(1) Crimes 666 (M.P.) has rejected the application.

The Hon''ble Supreme Court in Hanuman Ram v. The State of Rajasthan & others has held, once the witness was examined in chief and cross examined fully, such witness should not have been recalled and reexamined to deny the evidence he bad already given before the court, even though that witness had given inconsistent statement before any other court or forum subsequently.

In the present case, PW-6 has been fully examined in chief and cross examined. Thereafter, statement of the accused under section 313 of Cr.P.C. also has been recorded. In the circumstances, the Trial Court was justified in rejecting the application. It has relied upon the decision of the Hon''ble Supreme Court. I do not find any error or illegality in the impugned order. It does not call for interference.

Accordingly, the criminal petition is dismissed.

I.A.1/16 does not survive for consideration and accordingly, it is rejected.