SONU Vs. STATE OF MP

JUDGEMENT

(1.) Applicant has filed this revision petition under Section 397/401 CrPC against the order dated 13.05.2010 passed by the learned Special Judge, Gwalior in Special Case No.124/2002 by which the application filed by the respondent/State that prosecution witness Mamta cannot be permitted to be examined as defence witness has been accepted.

(2.) Facts in a nutshell giving rise to this revision are that applicant and co-accused are facing Special Case No.124/2002 in the Court of Special Judge (Dacoity) Gwalior for offence punishable under Section 302/34 IPC, Section 25/27 of Arms Act and Section 11/13 of MPDVPK Act. In that Court Mamta was examined on 21.3.03 as prosecution witness and she is alleged to be eye-witness of the incident. Thereafter, she submitted an affidavit on 31.3.2010 in the trial court in favour of the present applicant and co-accused stating therein that when her statement was recorded on 21.3.03 she was under pressure and she has not seen the incident of Vishnumangal's murder and she is not a witness of occurrence. Thereafter, one application was preferred under Section 311 of CrPC by the present applicant before the trial Court for recalling Mamta for further cross-examination that application was rejected on 16.04.10. Against that order, the applicant preferred one revision i.e. Cri. Revision No.348/10 that revision was withdrawn by applicant with liberty to move application before the concerned trial court for recalling Mamta and it was directed that if any such application is moved then it should be considered as per law. Thereafter, list of defence witness was filed and case was fixed for evidence of defence witness on 17.5.10. In that list name of Mamta was mentioned as witness No.6. Meanwhile on 10.05.2010 prosecution raised an objection that Mamta should not be permitted to be examined as defence witness as she has already been examined as prosecution witness. On 13.5.10 learned trial court accepted the application filed by prosecution and refused to grant permission for examining Mamta as defence witness. Against that order this revision is preferred.

(3.) It is contended on behalf of the applicant that the learned trial court has erred in accepting the application filed by the prosecution and not permitting Mamta to be examined as defence witness. It is further submitted that her examination as defence witness is necessary for proper disposal of the case as she has sworn her affidavit in favour of the applicant and as per averment of affidavit she has given statement previously in the court under pressure hence her previous statement is not considerable. It is further submitted that Mamta has thereafter filed a Private Complaint in the Court of JMFC Gwalior against complainant Sanjay on 31.3.10 in which her statement was recorded under Section 200 of Cr.P.C. on 23.6.10, in which she has narrated that she has sworn affidavit on her own will. It is further submitted that the learned trial court should have considered all these documents and should have given permission for examining Mamta as defence witness as her examination is necessary and it is also imperative to appreciate her evidence for just decision of the case.