Headnote:Indian Penal Code, 1860—Sections 302/149 and 148—Four appellants with two others were convicted under—Appellants armed with axe, lathi and Luhangi attacked deceased who was grazing cattle in field with prosecution witnesses—Trial Court recorded conviction accepting eye witness account of three witnesses PWs 1 to 3—High Court accepted their evidence to uphold conviction—Appeal—Incident happened at about 6O’clock in evening and contention was unacceptable that there would have been darkness for witnesses unable to identify assailants —PW 2 had supported charge but subsequently had failed to support prosecution case before Juvenile Court where some of juvenile delinquent were being prosecuted—Trial Court allowing recalling of witness for re-examination for being confronted with statement given before Juvenile Court was illegality—Evidence of three witnesses coupled with medical evidence proved appellant’s guilt—No reason to interfere.

Judgement Key Points

Key Points: - A witness who has been examined and cross-examined cannot be recalled and re-examined to deny earlier evidence, even if inconsistent statements were made to other courts (!) . - Confrontation with prior statements is only permissible when those statements were made by the witness previously (!) . - Conviction can be upheld based on the evidence of three eye-witnesses coupled with medical evidence, without requiring direct corresponding injuries for each weapon (!) .

What are the rights of the accused regarding witness recall and confrontation with prior inconsistent statements?

What is the requirement for court procedure when a witness is recalled after being examined and cross-examined?

What standard of proof is required to uphold a conviction in a murder case under Sections 302, 148, and 149 IPC?

Judgment

K.G. Balakrishnan, J.—The four appellants along with two others were found guilty of the offence punishable under Section 302 read with Section 149 IPC. They were also found guilty of the offence under Section 148 IPC. The appellants preferred an appeal before the High Court and the same was dismissed. Hence, they challenge their conviction and sentence in this appeal.

2. The incident giving rise to the present appeal happened on 22.7.1990 at about 6.00 p.m. PW-1 Kammod, PW-2 Mokam Singh and deceased Balmukund were grazing the cattle in their fields. The appellants along with their accomplices came there and attacked Balmukund and PW-2 Mokam Singh. Appellants Mishrilal and Lallu @ Lalaram were armed with axe and A-3 Kamoda @ Kamod Singh was armed with ‘lathi’ while A-4 Narayan Singh was armed with a ‘Luhangi’. The prosecution case is that all of them caused injuries to deceased Balmukund. PW 1 Kammod later went to the Police Station at Bajranggarh and gave information about the incident.

3. On the side of the prosecution, 8 witnesses were examined. PWs 1 to 4 are eye witnesses. The evidence of PW 4 Mathura Lal was not accepted by the Sessions Judge as his name was not mentioned in the F.I. Statement. The Sessions Court relied on the evidence of PW 1 to PW 3. The High Court also accepted the evidence of PW 1 to PW 3.

4. We heard the learned Counsel for the appellants and learned Counsel on behalf of the respondents. The learned Counsel for the appellants seriously contended before us that the incident happened after the sunset and these witnesses could not have identified the assailants. It was pointed out that these witnesses were standing at a distance and due to paucity of light, they had no opportunity to identify the assailants. We are not inclined to accept this contention, for the reason that the incident is alleged to have happened at about 6’o Clock in the evening and the prosecution case is that deceased Balmukund as well as PW 1 and PW 2 were grazing the cattle in their field at that time and there would not have been much darkness. Moreover, in the cross-examination of PW 1, there is not even a suggestion that there was no light and they were unable to see the incident, though, of course, there was a suggestion to the effect that the witnesses PW 1 and PW 2 must have been standing at a distance.

5. The learned Counsel for the appellants seriously attacked the evidence of PW 2 Mokam Singh. This witness was examined by the Sessions Judge on 6.2.1991 and cross-examined on the same day by the defence counsel. Thereafter, it seems, that on behalf of the accused persons an application was filed and PW 2 Mokam Singh was recalled. PW-2 was again examined and cross-examined on 31.7.1991. It may be noted that some of the persons who were allegedly involved in this incident were minors and their case was tried by the Juvenile Court. PW 2 Mokam Singh was also examined as a witness in the case before the Juvenile court. In the Juvenile Court, he gave evidence to the effect that he was not aware of the persons who had attacked him and on hearing the voice of the assailants, he assumed that they were some Banjaras. Upon recalling, PW-2 Mokam Singh was confronted with the evidence he had given later before the Juvenile Court on the basis of which the accused persons were acquitted of the charge under Section 307 IPC for having made an attempt on the life of this witness.

6. 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 PW 2 Mokam Singh on 6.2.1991, there was no such previous state

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