Udai Singh vs State of M.P.

Brij Kishore Dubey, J.—The petitioner is undergoing trial for the charge u/s 302 of IPC. The petitioner being the accused had filed an application u/s 311 of Cr.PC. before the Trial Court to recall Rai Singh (P.W. 11) for his cross-examination in regard to affidavit filed by the said witness more than 12 months after recording of his evidence. The aforesaid application of the petitioner/accused has been rejected by the Trial Court vide the impugned order dated 20-12-2012. Shri M.M. Tripathi, learned Counsel appearing on behalf of the petitioner has submitted that after recording the statement of Rai Singh (P.W. 1), he has submitted an affidavit before the Trial Court in which he has stated that under pressure, earlier he has given the statement before the Court and now he wants to put the true facts before the Court, therefore, he should be summoned for further cross-examination. In support of his contention, learned Counsel has placed reliance on a judgment of this Court in Mangilal Vs. State of M.P., 1997 (1) MPWN 138. In fact, the judgment referred to and relied upon by the learned Counsel for the petitioner is not a reasoned judgment, but a small order and was passed in the peculiar facts and circumstances of that case.

It may be noted that in the present case, the evidence of Rai Singh (P.W. 1) was recorded on 22-9-2011. On 19-6-2012, prosecution evidence has been closed and on 3-7-2012, the accused was examined u/s 313 of Cr.PC. thereafter the case was posted for defence evidence and the accused has examined two witnesses in his defence.

The affidavit dated 4-10-2012 has been filed by Rai Singh (P.W. 1) seems to have been filed only to help the petitioner and appears to this Court to be result of being won over by the petitioner. Such an affidavit filed by a witness cannot be constituted as legal evidence before the Court and shall not be taken into account by the Trial Court while deciding the criminal case pending against the petitioner. Being the accused person, the petitioner cannot be permitted to take advantage of such affidavit filed by the witness after more than 12 months of recording his statement.

In the case of State of Rajasthan Vs. Dr. Rajkumar Agarwal and Another, , Apex Court ruled that it is risky to encourage the practice of filing affidavits by the witnesses at the stage of investigation or during the Court proceedings in serious offences. If such practice is sanctioned, it would be easy for any influential accused to procure affidavits of witnesses during investigation or during Court proceedings.

The Apex Court in the case of Mishrilal and Others Vs. State of M.P. and Others, , 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.

Consequently, this Court in exercise of inherent powers u/s 482 of Cr.PC. does not find any ground to interfere with the impugned order dismissing the application of the petitioner u/s 311 of Cr.PC. In view of the foregoing reasons, this petition is dismissed in limine.