JATIN JETHWA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present revision is directed against the order dated 04.12.2017 of the Addl. Sessions Judge-I, Koderma, in S.T.NO.19/2008 whereby the petition filed under Section 311 Cr.P.C. by the petitioner for recall and re-cross examination of P.W.5 has been rejected.

(2.) Learned counsel for the petitioner has submitted that P.W.5 was examined as P.W.14 in S.T.No.121/2007 wherein she had not named the petitioner however in her testimony as P.W.5 in S.T.No.19/2008( in the instant case) she has named the petitioner as an accused. That this material contradiction in the deposition of P.W.5 could not be brought on record due to oversight of the counsel for the petitioner/accused. Therefore, the petition under Section 311 Cr.P.C was filed for recalling and further cross examination of P.W.5 on this point. It is submitted that further cross examination of P.W.5 is essential on this limited point as there is material contradiction in her deposition as P.W.14 in S.T.NO.121/2007 and her testimony as P.W.5 in the present case. It is submitted that if P.W.5 is not recalled for cross-examination on this limited point it shall prejudice the defence of the petitioner resulting in miscarriage of justice.

(3.) Learned A.P.P. has submitted that the court below in exercise of judicial discretion has rejected the petition under Section 311 Cr.P.C with the observation that the petitioner was afforded ample opportunity to cross-examine P.W.5 but he failed to cross-examine her on this aspect. That the petition was filed at a belated stage when the case was fixed for recording the statement under Section 313 Cr.P.C. That the court below has considered the mandate of the provision of Section 311 Cr.P.C and observed that re-cross examination of P.W.5 is not essential for the just decision of the case.