Decided on August 13,1999

RATTAN SINGH Respondents


- (1.) ORDER :- The question involved in this petition u/S. 561-A of Cr. P.C. though short, but is of a considerable importance touching upon the power of the trial Court to recall a prosecution witness who has already been examined for further cross-examination on the application of the accused.
(2.) The accused who are two in number are facing trial for the offences punishable under S. 302 read with S. 149 of R.P.C. They are alleged to have way laid the deceased-Ashok Kumar Thappa on 15-9-1992 while he was on his way to Jammu from Reasi on his motorcycle. Accused party is alleged to have persuaded the deceased on a Maruti van bearing registration No. JK 02-9653. The occurrence according to the prosecution was witnessed by P.Ws. Kewal Krishan and Rattan Lal. Both of them stand already examined and cross-examined. The examination-in-chief of P.W. Kewal Krishan commenced on 29-4-1994, but the cross-examination concluded only on 27-3-1995. While the trial of the case was nearing conclusion P.W. Kewal Krishan moved an application on 18-9-1998 supported by an affidavit stating therein that he be permitted to narrate the true facts of the case as what he had stated earlier was not the true version of the occurrence. This application was rejected by the trial Court on 21-2-1998. After the rejection of the application filed by the witness, accused party stepped in and filed an application to recall the witness for cross-examination so that he could be confronted with the statement made by him in his affidavit dated 18-9-1998. This application was allowed by the trial Court by passing order dated 14-1-1999 on the ground that his statement recorded in the Court and the statement about the occurrence made in the affidavit are at variance.
(3.) The contention of Mr. Bali appearing for the petitioner is that the Court should not have passed the impugned order as it would amount to allowing the witness to go back on his sworn testimony in the Court. The order impugned according to the learned counsel amounts to abuse of process of the Court and would encourage the accused to stiffle the prosecution by winning over the witness either with money power or use of force. The argument of Mr. J. P. Singh appearing for the accused is that since the witness has already sworn affidavit in which he has denied his presence at the place of occurrence at the time of commission of crime, therefore, unless the accused are given chance to cross-examine him, the truth remains a mystry. The learned Addl. Sessions Judge, argued the learned counsel was thus justified in recalling the witness as his re-examination was essential to the just decision of the case.;

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