Rattan vs State of Haryana

S.C. Malte, J.

This revision has been filed against the order dated 11.8.1997 by which the Additional Session Judge, Faridabad, declined to recall the prosecution witnesses whose evidence was already recorded long before. Papers before me indicate that the prosecution evidence in this case was concluded on 13.5.1996 and the statement of the accused has been concluded on 27.5.1996. Thereafter, on 16.1.1997 the accused submitted an application under Section 311 of Cr.P.C. to invoke the indulgence of the court for recalling the two prosecution witnesses, mainly PW2 and PW3, on the ground that these two witnesses by swearing affidavit on 2.1.1997 declared that they, in fact, did not identify the assailants due to the darkness, and that earlier they deposed before the Court under the influence of the Police. Thereby they wanted to indicate that identification of the assailants by them during the course of their testimony was an outcome of pressure from the police.

The Additional Sessions Judge was of the view that the question of recalling the witnesses depends on the facts and circumstances of each case. He considered the time gap between recording of evidence, and recording of statement of accused on one side, and the date of swearing in the affidavits by these two witnesses on the other side, and formed the opinion that obviously these witnesses have been won over during the period during which case was awaiting the judgment.

The counsel for the petitioner submitted before me that the powers of the Court under Section 311 are wide enough to recall the witnesses in the interest of Justice. According to him the recalling of the witnesses would be necessary because it is essential to the just decision of the case. He submitted that it cannot be justifiably said at this stage that the witnesses were won over now. These witnesses who now want to resile from their earlier testimony, would be subjected to crossexamination and only the whole evidence would reveal whether they were telling with the truth in the court of earlier evidence or in the course of subsequent evidence.

Counsel for the State on the other hand, in general, supported the order passed by the Trial Court.

The trial Court has rightly observed that there is no hard and fast rule that, in each and every case whenever such affidavits come to the Court, a witness should be recalled to verify whether the affidavit subsequently sworn by him pertains to truth or whether his earlier testimony was the truth. Nonetheless, in a case like this it would not be quite possible to see before hand that witness has been won over. The conclusion can be had only after scanning the testimony of such witnesses in totality. Even in a case of witness who appear to be not quite helping to the prosecution case, his evidence deserves to be scrutinised, and to the extent it is found reliable, it deserves to be accepted. Since the witnesses have sworn in affidavits, it has now become necessary to confront that affidavit to these witnesses in order to elicit the truth. The job of the Court is not only to decide the case one way or other, but its search for the truth. Section 311 contemplates the recalling of the witnesses if his evidence appears to be essential to the just decision of the case. Therefore, though I appreciate the reasons given by the Lower Trial Court while rejecting the application, I find that in set of circumstances and legal position, it has become necessary to allow the application. Similar view has been expressed in a case of State v. Ramesh alias Ramesh Kumar, 1990(1) C.C. Cases 444 (HC). In it the Delhi High Court after referring to the certain Supreme Court ruling, allowed the recalling of a witness who after about five months since the examination in the Court, came forward with an affidavit and indicated that she wanted to give a version different from what had been stated by her during the course of the testimony. In another case of Jeo Mirza v. State of Punjab, 1995(3) RCR 26 , this Court has followed the aforesaid case of State v. Ramesh, and allowed the recalling of the witnesses. It, therefore, appears that there are a plethora of decisions which opt in favour of recalling the witnesses whenever it appears that it was so necessary for proper adjudication of the case.

I, therefore, allow the revision, set aside the order passed by the Additional Sessions Judge, I direct that these witnesses PW 2 and PW 3, be recalled by the Trial Court. On recalling of these witnesses, these witnesses would be Court witnesses, meaning thereby, both the sides would be entitled to put questions to these witnesses. Since the recalling of the witnesses has been at the instance of the accused, the accused shall be given opportunity for putting questions initially, soon after the Court questioning is over. It shall be followed by questions, if any, put by the prosecution. The Trial Court is further directed to expedite the conclusion of the case as it has lingered for a long period since the conclusion of the statement of the accused on 27.5.1996. JUDGMENTs accordingly.

Revision allowed.