Section 311 CrPC | No Prosecution Witnesses Can Be Called For Examination Merely Because She Filed Affidavit Contrary To Her Deposition: Madhya Pradesh HC
|The Madhya Pradesh High Court held that an application under Section 311 of Cr.P.C. cannot be allowed to fill up the lacuna of a prosecution or defence case and no prosecution witness can be called for examination/cross-examination merely because he/she filed an affidavit contrary to his deposition made before the trial Court
The Court said that mere submission that some questions could not be put to the prosecutrix in her lengthy cross-examination, cannot be grounds to recall the witness who has already been examined and cross-examined fully.
The Court was hearing an application filed under Section 482 of Cr.P.C. 1973 after the applicant was aggrieved by the order where the application under Section 311 of Cr.P.C. moved by the applicant/accused for recalling prosecutrix for further cross-examination was rejected by the Trial Court.
The bench of Justice Dinesh Kumar Paliwal observed, “…help of Section 311 of Cr.P.C. cannot be given to accused to fill up the lacunas. Mere submission that some questions could not be put to the prosecutrix in her lengthy cross- examination, cannot be a ground to recall the witness who has already been examined and cross-examine fully….An application under Section 311 of Cr.P.C. cannot be allowed to fill up the lacuna of prosecution or defence case and no prosecution witness can be called for examination/cross-examination merely because he/she filed affidavit contrary to his deposition made before the trial Court.”
Advocate L.C.Chourasiya appeared for the Appellant and Advocate Manoj Kushwaha appeared for the Respondent.
An application under Section 311 of Cr.P.C. was moved by the accused for recalling the prosecutrix for further cross-examination on the ground that she had filed an affidavit after her evidence before the trial Court and some important questions could not be put to her in her cross-examination and therefore her further cross-examination is necessary. The application was rejected by the Trial Court by the impugned order. Aggrieved by the impugned order, the applicant filed the petition under Section 482 of Cr.P.C before the High Court.
The Court mentioned the Supreme Court decision in State (NCT of Delhi) Vs. Shiv Kumar Yadav and Another, reported in 2016(3) MPLJ (Cri.) SC 271 where according to the Court it was held, “discretion given to Court for recalling of witness has to be exercised judiciously to prevent failure of justice and not arbitrarily. Mere observation that recall was necessary for ensuring fair trial is not enough unless there are tangible reasons to show how fair trial suffered without recall.”
The Court said that no reason has been assigned for the delay in moving the application and according to the Court, the entire scenario shows that she has been won over as the prosecutrix in her FIR and the statement recorded under Section 161 and 164 of Cr.P.C. supported the story.
The Court further relied on the decision in Manghi @ Narendra Vs. State of M.P. reported in 2005 (4) MPLJ 136, and quoted, “once the witness is examined as a prosecution witness, he cannot be recalled for examination/cross-examination, merely because he filed affidavit contrary to his deposition made before the trial Court”.
The Court observed, “Unfair advantage cannot be given to any of the parties and no one can be permitted to recall the prosecutrix for further cross-examination merely on the ground that she has filed an affidavit after her deposition before the trial Court denying the incident.”
Accordingly, the Court dismissed the Petition under Section 482 CrPC.
Cause Title: Rajkumar Ahirwar v. State of M.P.