RAKESH YADAV Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) APPLICANT has filed this revision against the order dated 22. 01. 2008, passed by Sessions Judge, Satna in Sessions Trial no. 85/07, sustaining the objection raised by the Public Prosecutor that a prosecution witness of a case cannot be cross-examined and confronted with confessional part of his statement recorded under section 161 of the Code of Criminal Procedure even if confession pertains to some other case.

(2.) IN short, facts of the case are that applicant/accused is facing trial for an offence under Section 307/34 and Section 323 of the Indian penal Code in Sessions Trial No. 85/07 before the Court of Sessions judge, Satna. One Shri Ram Janam Rai is a prosecution witness in the case. There is a counter case also which is Sessions Trial No. 46/2007 under Section 302/34 of the Indian Penal Code. In that trial, Shri Ram janam Rai is an accused. While recording the statement of Ram Janam rai under Section 161 of the Code of Criminal Procedure in connection with the case registered under Section 307/34 of the Indian Penal code, he made a confessional statement that he had also fired a gun at Jhablu Yadav who died.

(3.) AT the time of examination of Shri Ram Janam Rai, as a prosecution witness, in Sessions Trial No. 85/07, a question arose whether he could be confronted with his statement recorded under section 161 of the Code of Criminal Procedure with respect to his confessional part. Learned Prosecutor raised objection that the defence cannot be permitted to cross-examine the witness with respect to a confessional part of the statement, as it was hit by Section 25 of the Indian Evidence Act, especially because at the time of making such statement the witness was in police custody in the counter case. The contention of the defence counsel was that if the accused was not permitted to cross-examine the witness with his statement recorded under Section 161 of the Code of Criminal Procedure, he would be immensely prejudiced in his defence. If the statement of witness was in the nature of confession pertaining to some other offence, the right of accused could not be curtailed and he could not be debarred from cross-examining the witness in respect to any part of the statement.