ORDER
Brij Mohan Gupta, J.
1. Heard finally at admission stage with the consent of both the parties.
2. Impugning the order dated 9-1-07 passed by 1st Additional Sessions Judge, Datia in S.T. No. 13/02, this petition has been filed on behalf of the petitioners, who are the accused in the case. Vide impugned order, an application filed under Section 311, Cr.PC by the petitioners for recalling of the witnesses already examined, was dismissed.
3. It is submitted by Shri Saxena that during the course of trial witnesses Raju (P.W. 2) and Jagdish @ Jogesh (P.W. 6) have stated against the petitioners. Thereafter, they executed their affidavits dated 2-11-06 in which they have deposed contrary to their previous statements recorded during trial. It is also mentioned in the affidavits that on account of the pressure of the police, they did not state the correct version during trial. On account of these two affidavits, one application was moved on behalf of the petitioners before the learned Judge for recalling of these two witnesses under Section 311 of Cr.PC which has been dismissed by the impugned order. While drawing the attention of the Court on an order of this Court passed in Shahid Roshan Jameer v. State of M.P. reported in 2002 (2) M.P.H.T. 39 : 2002 (1) MPWN 100, he submits that in such circumstances recalling of the witnesses is to be ordered.
4. Shri Sihare submits, that after availing full opportunity of cross-examining these two witnesses, they have been won over by the opposite party and got executed these two affidavits in their favour. On such ground, recalling of the witnesses under Section 311 of Cr.PC is not justified.
5. The following judgment on the point and dispute are very material to be quoted:
(1) Mishrilal v. State of M.P. and Ors. .
In our opinion, the procedure adopted by the Sessions Judge was not strictly in accordance with law.
Once the witness was examined-in-chief and cross-examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the Court, even though that witness had given an inconsistent statement before any other Court or forum subsequently. A witness could be confronted only with a previous statement made by him. At the time of examination of P.W. 2 Mokam Singh on 6-2-1991, there was no such previous statement and the defence Counsel did not confront him with any statement alleged to have been made previously. This witness must have given some other version before the Juvenile Court for extraneous reasons and he should not have been given a further opportunity at a later stage to completely efface the evidence already given by him under oath. The Courts have to follow the procedures strictly and can not allow a witness to escape the legal action for giving false evidence before the Court on mere explanation that he had given it under the pressure of the police or some other reason. Whenever the witness speaks falsehood in the Court, and it is proved satisfactorily, the Court should take a serious action against such witnesses.
(Emphasis supplied)
Rajpal Singh v. C.B.I., Bhopal 2006 (1) M.P.H.T. 299 : 2005 (4) MPLJ 482 also to be seen on this point as quoted by the Lower Court which is based on a judgment of Apex Court in Satyajit Banerjee and Ors. v. State of W.B. and Ors. . As mentioned in impugned order, the statement of Raju was recorded on 28-6-03 and the statement of Jagdish @ Jogesh was recorded on 30-12-03. On perusal of these two statements, it appears that sufficient cross-examination at length was done. Thereafter, on 2-11-06 both the witnesses executed their affidavits on which this application has been based which shows that after about a period of three years these affidavits were executed. In this factual position, the observation of the Apex Court in Para 9 in the case of Nisar Khan alias Guddu and Ors. v. State of Uttaranchal , is material to be seen which is quoted herein below:
9. The other contention of Mr. Jaspal Singh is that all the eye-witnesses were turned hostile and the credibility of their testimony are doubted. It is clearly apparent on the record that eye-witness P.W. 4 Naeem Babu had filed an application before the Trial Magistrate (Ext. Kha-27) that he has been threatened and intimidated by the accused not to depose against them. So also P.W. 1 and P.W. 2 who were eye-witnesses and supported the prosecution case consistently, were turned hostile. P.W. 1 and P.W. 2, direct eye-witnesses of the occurrence were examined, cross-examined and discharged on 4-1-01. They were recalled on 7-1-02 and re-examined by the defence on which date all of them turned hostile and resiled from the previous statement. It clearly appears that the eye-witnesses were won over by threat or intimidation after more than one year of their examination and cross examination and ultimately when the eye-witnesses were won over by the accused they were recalled and re-examined on 7-1-02. Even on re-examination on 7-1-02 the eye-witnesses consistently supported the prosecution story with regard to the date and place of incident, the car in which they came and genesis of the incident. To what extent they supported the prosecution story. They resiled from the previous statement only with regard to the identity of the accused. It is in evidence on record that the accused and prosecution parties are at logger heads because of business rivalry and known to each other from before. Naturally, by the time the eye-witnesses were recalled, they were won over either by money, by muscle power, by threat or intimidation. We are of the view that no reasonable person properly instructed in law would allow an application filed by the accused to recall the eye-witnesses after a lapse of more than one year that too after the witnesses were examined, cross-examined and discharged.
(Emphasis supplied)
The observation of another Bench of this Court in Manghi @ Narmada v. State of M.P. 2005(4) M.P.L.J. 136, is also very material in which while referring in Para 8 of the judgment of the Apex Court in Yakub Ismailbhi Patel v. State of Gujarat , it has been observed that once the woman has been examined as a prosecution witness, she cannot be recalled for examination/cross-examination merely because she filed affidavit contrary to her deposition made before the Trial Court.
6. On behalf of the petitioner Shri Saxena has drawn the attention on a judgment of this Court in Shahid Roshan Jameer (supra), in which, following the observation of he Apex Court in the case of Hussain Umar Kochra etc. v. K.S. Dalipsinghji and Anr. , it is observed that the Court has inherent powers to recall a witness, if satisfied that he is prepared to give evidence which is materially different from that he had given at the trial. The observation of the Apex Court in Para 19 of this judgment goes as under:
19. As to the last question, we find that examination-in-chief of P.W. 50 Ali commenced on October 7, 1960 and was concluded on October 10, 1960. His cross-examination commenced on August 21, 1961 and was concluded on September 4, 1961. On March 6, 1962 and again on June 21, 1962 the defence applied for recalling Ali for cross-examination. The learned Magistrate rejected the two applications. According to the defence Ali was repentant and wanted to say that he had given false evidence. In our opinion, no ground was made out for recalling Ali. There was no affidavit from Ali nor was there any other material showing that his testimony was incorrect in an material particular. The Court has inherent power to recall a witness if it is satisfied that he is prepared to give evidence which is materially different from what he had given at the trial. In this case there was no material upon which the Court could be so satisfied. The learned Magistrate rightly disallowed the prayer for recalling Ali.
It appears that the Apex Court has only observed that the Court is having inherent power to recall a witness if it is satisfied. This observation does not mandate to recall such witness for re-examination in every case. The satisfaction of the Court is appears to be paramount which ought to be based on the interest of justice. Thus observation of an another Bench of this Court, in the case of Shahid Roshan (supra), does not help the contention of Shri Saxena.
7. In all the facts and the circumstances of the case, the contention of Shri Sihare on behalf of State, appears to be very near to the truth, that these two witnesses have been subsequently won over by the petitioners. Otherwise there appears no occasion to resile from their earlier statements. Following observations of the Apex Court in the cases of Mishrilal and Nisar Khan (supra), and the observation of this Court in Manghi @ Narmada (supra), the petition deserves to be dismissed.
Consequently, the petition, being devoid of merits, dismissed.