INDRAJEET ROY Vs. REPUBLIC OF INDIA

JUDGEMENT

(1.) The accused in a pending trial has filed this writ application against the order passed by the Sessions Judge, Khurda at Bhubaneswar, in Criminal Revision No. 39 of 1999 which had been filed against the order of the trial Court rejecting the application of the present petitioner for recalling prosecution witness for further cross-examination.

(2.) The petitioner is facing trial in the Court of the C.J.M.-cum-Assistant Sessions Judge, Khurda at Bhubaneswar, in S.T.Case No. 36/5 of 1998 on the allegations that he has committed offences under Sections 354, 376/511, Indian Penal Code. Initially, the case had been registered in Cantonment Police Station and was being investigated by the Investigating Officer thereof. Subsequently, on the basis of a direction of the High Court, the investigation of the case was handed over to the C.B.I.and after further investigation, charge-sheet having been filed by the C.B.I., the case is now being tried by the trial Court. After the examination and cross-examination of P.W.4 were over and while some other prosecution witnesses were being examined, the petitioner filed an application before the trial Court for recalling P.W.4 for further cross-examination for the purpose of confronting the witness with certain alleged omissions in her statement made before the Investigating Officer at different stages. The said application having been rejected, the petitioner had filed Criminal Revision No. 580 of 1998 in the High Court which was disposed of with the observation that it would be open to the petitioner to file fresh application giving details of the alleged omissions or contradictions sought to be confronted to P.W.4. Accordingly, the petitioner filed fresh application on 16-2-1999 giving the details of the alleged omissions. Copy of the said application has been annexed as Annexure 1 to the writ application. The said application was rejected by the trial Court solely on the ground that the statements of the witness recorded by Investigating Officer of Cantonment Police Station and Investigating Officer of C.B.I.on different dates constituted part of the same previous statement and the accused cannot be permitted to confront the statements, as the statements had been made to the Investigating Officers on a subsequent date. The matter came to the High Court in Criminal Revision No. 135 of 1999 which was disposed of by one of us (P.K.Misra, J.) vide judgment dated 26-6-1999, copy whereof has been annexed as Annexure 2 (reported in (1999) 17 CCR 157 (Indrajeet Roy v. Republic of India). In the said decision after referring to the decisions reported in AIR 1958 Mys 138 : (1958 Cri LJ 1205) (Munirajappa v. State of Mysore) and 1961 Cri LJ 1165 (Asan Tharayil Baby v. State of Kerala) and after clarifying the position of law, the trial Court was directed to reconsider the question of recalling P.W.4 for further cross-examination.

(3.) Thereafter, the trial Court after hearing both the sides rejected the application for recalling P.W.4 as per order, annexed as Annexure 3, inter alia, on the grounds that the alleged omissions had no direct relation with the alleged incident and the alleged omissions came into existence after the incident and some of the statements of P.W.4 on the aspect sought to be cross-examined further were hear-say in nature and some of the statements had already been confronted to the witness and some of the omissions were not very material. The trial Court also referred to various decisions including the decision reported in AIR 1959 SC 1012 : (1959 Cri LJ 1231) (Tahsildar Singh v. State of U.P.) and observed that the question intended to be confronted to P.W.4 in no way contradicts the statement made by her before Court and as such the omissions cannot be treated as contradiction and the omissions are minor in nature. The petitioner thereafter filed Criminal Revision No. 39/99 before the Sessions Judge, Khurda at Bhubaneswar. The Sessions Judge rejected the revision on the ground that the revision was barred under Section 397(3) of the Code of Criminal Procedure (in short, the "Cr. P.C."). It was also observed :-