STATE OF ORISSA Vs. ASHOK KUMAR PANIGRAHI

JUDGEMENT

(1.) THIS petition under Section 482, Code of Criminal Procedure is directed against an order of the Sessions Judge, Sambalpur, refusing the petition filed by the State for permission to cross -examine P.W. 3. The opposite party is facing trial under Section 302 I. P. C in Sessions Trial No. 96 of 1988 and admittedly the two eye -witnesses to the occurrence are p. ws. 2 and 3 of which P.W. 2 is the field servant of the opposite party and having turned hostile was cross -examined by the prosecution. P.W. 3 was examined on 12 -12 -1988 and 13 -12.1988. While P.W. 3 had deposed narrating fully the prosecution case, yet the last sentence of her deposition had been recorded as if she was accepting the suggestion of the defence that her statement that she bad gone to the bushy jungle behind the house of the accused and had seen him assaulting the deceased are all false and the result of the tutoring by the police and the threats of her father -in -law. The Court remained closed from 24 -12 -1988 to 1 -1 -1989 and after re -opening, the certified copy was compared with the original deposition of P.W. 3 where it was noticed that in the original deposition the word not showing the suggestion of the defence to have been denied had been, scored through and hence on 3 -1 -1989 a petition was filed to treat the evidence of P.W. 3 as it was before the correction. The petition being resisted by the opposite party the P.W. 3 was directed to appear on 16 -1 -1989 for clarification of her evidence. On that day the witness on being recalled at the instance of the Court, made the statement that the last sentence in her deposition recorded on 13 -12 -1988 that she had been for easing to the bushy jungle and saw the accused assaulting the deceased was the result of the tutoring by the police and the threats given by her father -in -law. A petition was thereafter filed by the learned public prosecutor for permission to put questions to the, witness but the same was rejected and the witness was discharged. It is such order which is impugned in this miscellaneous case.

(2.) A perusal of the evidence of P.W. 3 shows her to be an eye -witness to the occurrence and having denied all negative suggestions of the defence, but the last two sentences of her deposition recorded on 13 -12 -1988 were as follows:

(3.) READING the evidence of P.W. 3 recorded on 16 -1 -1989 and 13 -12 -1988 there appears to be some confusion since in the last sentence of her deposition on 13 -12 -1988 she never stated of having gone to the bushy jungle for easing and having seen the accused assaulting the deceased there and on the contrary, denied the same by saying that such statements made earlier were false and the result of tutoring by the police and the threats by her father -in -law. On 16 -1 -1989 while giving clarification, she however stated of having made such a statement in the last sentence of her deposition on 13 -12 -1988. Be that as it may, on a reading of the evidence of both the days, it is clear that she has attempted to resile from her entire deposition in the Court by maintaining that the most vital part of her evidence was false and was the 'result of the police tutoring which she was compelled to depose under the threats of her father -in -Law. The statement was completely destructive of the prosecution case and was wholly contrary to her statement before the police and hence there cannot be any doubt that if her statement before the police is to be believed, she was resorting to falsehood and that otherwise if her evidence regarding the threat and tutoring is to be accepted it, shall completely demolish the prosecution case which assumes even greater importance since in effect she is the sole eye -witness the other eye -witness P.W. 2 having already turned hostile. It thus stands to reason that the public prosecutor was perfectly justified in seeking permission of the court to cross -examine the witness and the order of the learned Sessions Judge in refusing the prayer without assigning any reason is not in accordance with law.