M.C.JAIN, J. - (1.) - The present reference has been made by a learned Single Judge Hon 'ble Mr. Justice B. K. Rathi to answer the following question : "Whether on the request of the accused the witnesses should be recalled for further cross-examination under S. 311 Cr. P.C. on the facts stated by them in the affidavits filed subsequent to their statement recorded in the Court ?"
(2.) It would be useful to give a brief account of the facts relating to this reference. The applicants are facing trial under S. 307 I.P.C. in S.T. No. 694 of 1996, State v. Chand before the Special Judge, E.C. Act, Muzaffarnagar. The evidence of the three prosecution witnesses, Rafiq, P.W.1, Aslam P.W.2 and Akbar P.W.5 was recorded as the witnesses of fact. Their evidence with cross-examination concluded long before 23-2-1999 when the applicants made an application to the trial Court that all these three eye-witnesses had filed affidavits denying the prosecution story and their statements recorded in the Court. The applicants made a prayer for recalling the witnesses for further cross-examination in the light of the averments made in the respective affidavits filed by these witnesses. The trial Court rejected such application of the applicants and aggrieved, they came up before this Court under S. 482 Cr.P.C. From the side of the applicants reliance was placed on the case of Sukhhan v. State, 1988 All.L.J. 175 and Amar Pal v. State of U.P. 1999 (38) A.C.C. 515, where, on similar facts and circumstances, request to recall witnesses for further cross-examination in the light of their subsequent affidavits had been allowed. Disagreeing with the view taken in each of the aforesaid two rulings by a learned Single Judge of this Court, Hon 'ble B. K.Rathi, J. has made this reference to answer the question set out above.
(3.) We have heard learned counsel for the applicants and learned A.G.A. and have given our thoughtful consideration to the matter in the light of the relevant provisions of law. It is relevant to reproduce below S.145 of the Evidence Act occurring in Chapter X which reads thus : "145 . Cross-examination as to previous statements in writing - A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matter in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.";