Udaibir and Others vs State of U.P.

U.S. Tripathi, J.—This revision has been directed against the order dated 14-8-2001, passed by Addl. Sessions Judge, Court No. 5, Muzaffar Nagar, in S.T. No. 1304 of 1998, rejecting the applications (paper No. 117B and 126 B) of the applicants for recall of PWs Amar Pal, Yash Pal Singh, Chand Vir and Lokendra for re-examination.

The facts giving rise to this revision are that the applicants are facing trial in S.T. No. 1304 of 1998 under Sections 147 148 149 307 and 302 I.P.C. relating to P.S. Sitawa, District Muzaffarnagar. During trial the prosecution examined Amar Pal, Chandvir, Yashpal and Lokendra as witnesses. Those witnesses were fully cross examined on behalf of the applicants. Thereafter some other witnesses were examined and the case was listed for arguments. At the stage of arguments the applicants moved applications paper No. 117B and 126 B for recalling the above witnesses on the ground that they had filed affidavit that they gave wrong evidence and the applicant Udaivir was in Bareilly jail on the date of occurrence, therefore, their testimony was incorrect and materially different from what they had given at the trial.

The trial Court on considering the facts and circumstances of the case and the grounds for recalling the witnesses found that the application had no force in view of the Division Bench decision of this Court in Tahir v. State of U.P. (2000) 40 All Cri C 311 : 2000 ALJ 416 and accordingly, dismissed the application.

The applicants have challenged the above order in this revision.

Heard learned counsel for the applicants, learned AGA and perused the record.

The learned counsel for the applicant contended that the Apex Court in the case of Mohd. Husain Umar Kochra etc. Vs. K.S. Dalipsinghji and Another etc., had held that the prosecution witness Ali, who was examined earlier was repentant and wanted to say that he had given false evidence but that was not accepted by the Apex Court, because there was no affidavit from Ali, nor there was any other material showing that his testimony was incorrect in any material particular. That it was further held in the said case that the Court has inherent power to recall a witness if it is satisfied that he is prepared to give evidence, which is materially different from what he had given at the trial. That since in the said case there was no material upon which the Court could be so satisfied, it was held that the Magistrate rightly disallowed the prayer for recalling Ali. That in the instant case there was affidavit of the above four witnesses that their statement given in the Court was wrong and they wanted to give correct statement. Therefore, in view of the principle laid down in the above case by the Apex Court the application deserved to be allowed.

The matter on the request of the accused the witnesses should be recalled for further cross-examination u/s 311 Cr.P.C. on the facts stated by them in the affidavits filed subsequent to their statements recorded in the Court was considered by a Division Bench of this Court in the case of Tahir and Anr. v. State of U.P. (2000) 40 All Cri C 311 : 2000 ALJ 416 and it was held that the witnesses should not be recalled for further cross-examination u/s 311 Cr.P.C. on the facts stated by them in affidavit filed subsequent to their statements recorded in Court at the request of the accused. However, the Court has plenary power to summon or recall any witness at any stage u/s 311 Cr.P.C, if there exists justifiable reason to do so in the interest of justice, but the Court should act with circumspection and exercise power sparingly.

The decision of the Apex Court in Mohd. Husain Umar Kochra etc. Vs. K.S. Dalipsinghji and Another etc., was also considered by the Division Bench. Though the witness had filed affidavit subsequent to their statement in the Court that they gave incorrect statement previously and wanted to give correct statement, but the copies of the affidavit annexed with the memo of revision show otherwise and it appears that subsequently an attempt was made by the defence to win over the prosecution witnesses. Therefore, on the facts and circumstances of the case, the learned Sessions Judge rightly rejected application of the applicants.

The revision has no force and is, accordingly, rejected summarily.