Sonu vs State of M.P.

Indrani Datta, J.

Heard on I.A. No. 10860/10, which is an application u/s 301(2) CrPC for permission to assist the public prosecutor in the case.

Application is allowed. Counsel for complainant is permitted to assist the P.P. at the time of hearing.

With the consent of parties matter is finally heard.

Applicant has filed this revision petition u/s 397/401 CrPC against the order dated 13.05.2010 passed by the learned Special Judge, Gwalior in Special Case No. 124/2002 by which the application filed by the respondent/State that prosecution witness Mamta cannot be permitted to be examined as defence witness has been accepted.

Facts in a nutshell giving rise to this revision are that applicant and co-accused are facing Special Case No. 124/2002 in the Court of Special Judge (Dacoity) Gwalior for offence punishable u/s 302/34 IPC, Section 25/27 of Arms Act and Section 11/13 of MPDVPK Act. In that Court Mamta was examined on 21.3.03 as prosecution witness and she is alleged to be eye-witness of the incident. Thereafter, she submitted an affidavit on 31 .3.2010 in the trial court in favour of the present applicant and co-accused stating therein that when her statement was recorded on 21 .3.03 she was under pressure and she has not seen the incident of Vishnumangal''s murder and she is not a witness of occurrence. Thereafter, one application was preferred u/s 311 of CrPC by the present applicant before the trial Court for recalling Mamta for further cross-examination that application was rejected on 16.04.10. Against that order, the applicant preferred one revision i.e. Cri. Revision No. 348/10 that revision was withdrawn by applicant with liberty to move application before the concerned trial court for recalling Mamta and it was directed that if any such application is moved then it should be considered as per law. Thereafter, list of defence witness was filed and case was fixed for evidence of defence witness on 17.5.10. In that list name of Mamta was mentioned as witness No. 6. Meanwhile on 10.05.2010 prosecution raised an objection that Mamta should not be permitted to be examined as defence witness as she has already been examined as prosecution witness. On 13.5.10 learned trial court accepted the application filed by prosecution and refused to grant permission for examining Mamta as defence witness. Against that order this revision is preferred.

It is contended on behalf of the applicant that the learned trial court has erred in accepting the application filed by the prosecution and not permitting Mamta to be examined as defence witness. It is further submitted that her examination as defence witness is necessary for proper disposal of the case as she has sworn her affidavit in favour of the applicant and as per averment of affidavit she has given statement previously in the court under pressure hence her previous statement is not considerable. It is further submitted that Mamta has thereafter filed a Private Complaint in the Court of JMFC Gwalior against complainant Sanjay on 31 .3.10 in which her statement was recorded u/s 200 of Cr.P.C. on 23.6.10, in which she has narrated that she has sworn affidavit on her own will. It is further submitted that the learned trial court should have considered all these documents and should have given permission for examining Mamta as defence witness as her examination is necessary and it is also imperative to appreciate her evidence for just decision of the case.

Learned Counsel for the State as well as Counsel for complainant vehemently opposed the revision and submitted that incident of murder of Vishnumangal occurred in the year 2002 and in that case all the co- accused have been convicted and present applicant remained absconding for five years, Mamta was examined as prosecution witness in presence of present applicant, thereafter application for recalling Mamta for further cross- examination has already been rejected, therefore, she cannot be permitted to be examined as defence witness. Reliance is placed on Umar Mohammad and Ors. v. State of Rajasthan (2009) 3 SCC (Cri.) 244. In that case PW-1 who was examined in court on 5-7-1 994 purported to have filed an application on 1-5-1995 stating that five accused persons named therein were innocent. Said application was rejected by trial court and revision application filed there against also rejected by High Court. It was held by Apex Court that it was not a case where stricto sensu the provisions of Section 311 could have been invoked. Very fact that such an application was got filed by PW1 nine months after his deposition is itself pointer to the fact that he had been won-over. It is absurd to contend that he, after a period of four years and that too after his examination-in-chief and cross-examination was complete, would file an application on his own will and volition. Furthermore, reliance is placed on Mishrilal and Ors. v. State of M.P. and Ors. 2005 SCC (Cri.) 1712 in which it is held that once the witness was examined-in-chief and cross-examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him.

Placing reliance on the above citations, learned Counsel for the State as well as Counsel for complainant submitted that Mamta was examined in the year 2003 and after seven years she has filed one affidavit on 31.3.10. Apparently that affidavit is filed after long span of time and the possibility that she has been won-over cannot be ruled out particularly when she has been examined as prosecution witness in presence of applicant. It is further asserted that the learned trial court has rightly allowed the application of the State for not permitting Mamta to be examined as defence witness. There is no perversity in that order and the same is impeccable and does not warrant any interference by this Court.

Considered rival submissions of parties and perused the documents on record.

Arguments advanced on behalf of the learned Counsel for the respondent/State as well as complainant seem to be reasonable and acceptable. Apparently, Mamta was examined in the year 2003, she kept mum and silent for a long span of seven years and application filed on behalf of the applicant for calling her for examination has already been rejected, she cannot now be examined as defence witnesses on the basis of affidavit sworn by her after a long span of seven years.

In case of State of Madhya Pradesh Vs. Badri Yadav and Another, witnesses were examined by prosecution as eye-witnesses on 18-12-1990, cross- examined and discharged. Thereafter, an application u/s 311, CrPC. was rejected. It is observed by Supreme Court that witnesses were recalled purportedly to exercise of power under Sub-section (3) of Section 233, Cr.P.C. and examined as DW-1 and DW-2 on behalf of the accused on 17-7-1995. This was clearly for the purpose of defeating the ends of justice, which is not permissible under the law. That apart, in the present case both PWs are related to the deceased. Being the close relative and friend of the deceased there is no rhyme and reason to depose falsely against the accused and allowing the real culprit to escape unpunished. On 21-9-1989, their statements were recorded u/s 164, CRP.C. before the Magistrate. On 18-12-1990, their depositions were recorded before the Sessions Judge. In both the statements they have stated that they were eye-witnesses and witnessed the occurrence. Both of them have stated that they saw the accused assaulting the deceased with knives and swords. They were subjected to lengthy cross-examination but nothing could be elicited to discredit the statement-in-chief. Their examination as defence witnesses was recorded on 17-7-1 995 when they resiled completely from the previous statements as prosecution witnesses. It, therefore, clearly appears that the subsequent statements as defence witnesses were concocted as well as afterthought. They were either won over or were under threat or intimidation from accused. No reasonable power, properly instructed in law, would have acted upon such statements. Prima facie prosecution witnesses in their subsequent affidavits made a false statement which they believed to be false or did not believe to be true. It was held that these witnesses are liable for perjury for giving false evidence punishable u/s 193, IPC.

Considering the above legal aspect and overall facts and circumstances of the case, this petition deserves to be dismissed as the order of learned trial court is proper and legal. Learned trial court has rightly accepted the application of the State. There is no perversity in the order of the court below. Accordingly, the petition being bereft of any merit, is hereby dismissed.

Law laid down by the judgment/order:

Witness examined as prosecution witness cannot be juxtaposed as defence witness. Mere submission of an affidavit by witness after a long span of seven years that his earlier statement was given under pressure is no ground for permitting prosecution witness to be examined as defence witness.

Significant paragraph numbers: 7 to 9