Judgment:
133 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No.M-22635 of 2014 Date of decision: July 11, 2014 Dharampal alias Chhabil Chand and another ...Petitioners Versus State of Haryana ...Respondent CORAM: HON'BLE Mr.JUSTICE INDERJIT SINGH1 To be referred to the Reporters or not?.
Yes 2.
Whether the judgment should be reported in the Digest?.
Yes Present: Mr.Sandeep Kumar Yadav, Advocate for the petitioneRs.**** INDERJIT SINGH, J.
Petitioners Dharampal alias Chhabil Chand and Bansidhar have filed this petition against State of Haryana respondent under Section 482 Cr.P.C.for quashing of the impugned order dated 28.05.2014 passed by learned Addl.
Sessions Judge, Narnaul whereby the application under Section 311 Cr.P.C.filed by the petitioners has been dismissed.
At the time of arguments, learned counsel for the petitioners argued that after the cross-examination of Kumari Alka in FIR under Section 302/34 IPC against the petitioners regarding death of Sunita, Kumari Alka wrote undated letter to her grand-father, who is accused, stating that she has narrated all the facts to the police but the police has threatened her and her maternal grand-father and other VINEET GULATI201408.04 16:07 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-22635 of 2014 -2- persons of the village told her that her father shall perform second marriage.
She also stated in this letter that when she came to give statement before the Court , two police persons came to her and asked her to depose as per them, otherwise she and her maternal grand-father would be implicated.
The petitioners-accused, who are father and grand-father of Kumari Alka filed the application before the Court to recall PW-10 Kumari Alka for further cross-examination in view of the letter written by Kumari Alka.
I have gone through the record and have heard learned counsel for the petitioner.
From the record, I find that present petitioners have filed the application under Section 311 Cr.P.C., on the basis of the letter, for recalling Kumari Alka.
The Court has dismissed this application vide impugned order dated 28.05.2014 by holding that no ground is made out to allow the present application which has been filed with a motive to cause delay in the trial case for which the applicant cannot be permitted by law.
At the time of arguments, learned counsel for the petitioners also argued that petitioners want to recall PW-10 Kumari Alka for further cross-examination to confront her with the letter written by her to her grand-father, who is accused in this case.
As per Section 145 of the Indian Evidence Act, the witness can be confronted only with the previous statements and not with subsequent statement.
Section 145 of the Indian Evidence Act, 1872 provides as under:- “145.
Cross-examination as to previous statements in writing-A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, VINEET GULATI and relevant to matters in question, without such writing 2014.08.04 16:07 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-22635 of 2014 -3- being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”
.
The letter in question has been written after cross- examination of PW-10 Kumari Alka in the Court as witness.
Therefore, this letter, if it is proved to be written by Kumari Alka, would amount to her subsequent statement with which the witness Kumari Alka cannot be confronted in further cross-examination.
Therefore, the application for recalling of PW-10 Kumari Alka cannot be allowed to confront her with her subsequent statement.
There is no dispute that the Court has ample powers to recall the witness or summon the witnesses etc.in the interest of justice, where it appears to the Court that this evidence is material evidence and necessary for the just decision of the case but as the petitioneRs.as per law, cannot confront the witness with her subsequent statement, therefore, the application under Section 311 Cr.P.C.has been correctly dismissed by the learned Session Court.
The order passed by learned Sessions Court below is legal and no illegality has been committed.
Otherwise also, such type of practice cannot be allowed as it will lead to mockery of the law.
When the witness has given his statement before the police during investigation and then while appearing before the Court has given statement in the Court and after long time, if the witness has changed his/her mind, then witness cannot be allowed to turn hostile without any reason or cause.
If there was any pressure of police or any threat to the witness, she should have reported it to the Court VINEET GULATI201408.04 16:07 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-22635 of 2014 -4- either at the time of recording of statement or immediately without any unnecessary delay, to the trial Court.
Kumari Alka was examined in the Court on 30.10.2013.
Copy of letter in question, placed on the record, is undated and the application under Section 311 Cr.P.C.for recalling Kumari Alka was given on 28.03.2014.
The witness cannot be recalled to undo whatever she has deposed earlier in the case and the Court should not recall the witness in such type of circumstances only to abuse the process of the Court.
Learned counsel for the petitioners has cited judgment passed by this Court in Jeo Mirza versus State of Punjab, 1995(3) R.C.R.(Criminal) 26.
I have gone through this cited judgment and the same having distinguished facts will not apply in the present case as in that case it is nowhere discussed as to whether witness can be confronted with the subsequent statement.
In view of the above discussion, I find that the order passed by learned Addl.
Sessions Judge, Narnaul is correct and as per law and does not require any interference from this Court.
Therefore, the present petition stands dismissed.
July 11, 2014 (INDERJIT SINGH) Vgulati JUDGE VINEET GULATI201408.04 16:07 I attest to the accuracy and integrity of this document Chandigarh