LAWS(P&H)-1999-8-205

NAGESH AND OTHERS Vs. STATE OF HARYANA

Decided On August 13, 1999
Nagesh And Others Appellant
V/S
STATE OF HARYANA Respondents

JUDGEMENT

(1.) This application is filed to quash to the order of the learned Additional Sessions Judge, Faridabad dismissing an application filed by the petitioners for recalling PW-7 Hemlata for further cross-examination.

(2.) The petitioners are being prosecuted for the offences under Section 376, 506 read with Section 34 I.P.C. and also for the offence under Section 3/33/89 of the Scheduled Castes ad Scheduled Tribes Act. The prosecutrix was examined as PW-7 on .15.3.1999. According to the petitioners, after the cross-examination in the Court, she gave an affidavit to the effect that none of the accused committed any offence and she had given evidence in the Court under the threat of the Police. The petitioners are seeking recalling her for further cross-examination on the basis of her affidavit which is subsequent to her deposition in the Court. The learned Additional Sessions Judge; Faridabad dismissed that application. Hence the accused- petitioner filed this petition under Section 482 Cr.P.C.

(3.) The learned Counsel for the petitioners relied upon two decisions of this Court rendered by the single Judges. In Rattan and others v. State of Haryana, 1997 3 CCC 23, it has been held that the Court can recall a witness whenever it is so necessary for proper adjudication of the cases. In Jeo Mirza v. State of Punjab, 1995 3 RCR(Cri) 26 it has been that that when the prosecutrix who has been examined in Court subsequently wrote a letter to the accused that she had given the evidence in Court under the threat of the police, the petitioner to recall her for further examination be allowed. I am unable to subscribe to the view taken by the learned Judges of this Court in view of the specific provisions under Section 145 of the Evidence Act. It is no doubt true that Section 311 of the Code of Criminal Procedure empowers the Court to recall a witness for the purpose of proper adjudication of the matter, but the statement which is sought to be put to her in further cross-examination must be admissible under law. The learned counsel for the petitioners is not able to draw my attention of any provisions of law where a subsequent statement of the witness is vadmissible under law. In both the cases relied upon by the learned Counsel for the petitioners, the question of admissibility of the subsequent statement has not been examined by the learned Judges of this Court. Under Section 145 of the Evidence Act, only a witness can be cross-examined as to the previous statement made by him in writing or reduced into writing. It is a settled law that subsequent statement made by a witness after giving evidence is not admissible. It has been held by the Apex Court in State of Rajasthan v. Teja Ram and others, 1999 3 SCC 507 that one of the permitted modes of impeaching the credit of witness is proof of former statement which is inconsistent with any part of his testimony as indicated in Section 155 (3) of the Evidence Act. But the mode of using such former statement for the purpose of contradicting the witness is prescribed in Section 145 of the Evidence Act. Therefore I am unable to agree with the contention of the learned Counsel for the petitioners that the prosecutrix has to be recalled' under Section 311 Cr. P.C. for the purpose of putting the subsequent statement to her in the further cross-examination. The law does not permit to confront a witness with a statement which has been made subsequently. Therefore' the prosecutrix cannot be recalled for further cross-examination on the basis of the subsequent statement made by her by way of sworn affidavit. Further as held by, the Additional Sessions Judge, the Prosecurtix was represented by a Senior Counsel. It cannot, therefore be believed that she has given evidence under the threat of the Police. If really, the prosecutrix has given any affidavit subsequently, the proper course open to the accused-petitioners is to prove the said affidavit by examining the person as a witness before whom the affidavit is said to have been sworn. What evidentiary value can be given to such an affidavit is for the trial Court to decide on appreciation of the entire evidence placed before it.