IMPORTANT POINT
Provisions of Section 233(3) Cr.P.C. can not be understood as compelling the attendance of any prosecution witness examined, cross examined to be juxtaposed as DW.

Headnote:Indian Penal Code, 1860—Section 302/34—Criminal Procedure Code, 1973—Section 233(3)—Respondent-Accused assaulted deceased with swords and knives causing number of injuries and caused his death—Conviction by trial Court believing testimony of two eye witnesses PW8 and PW9—High Court set aside conviction relying on testimony of DW1 and DW2 who were PW8 and PW9 but later filed an affidavit that they had given evidence because of police pressure and were allowed to be examined by accused in defence—State appeal—During investigation statements of PW8 and PW9 were got recorded u/s 164 Cr.P.C. on 21.9.1989 and their evidence during trial was recorded on 18.12.1990—Witnesses filed affidavit in August 1994—Application u/s 311 Cr.P.C. for recalling and re-examining them was rejected—No provision in Cr.P.C. that by filing affidavit witnesses could be juxtaposed as DW1 and DW2 and be examined as defence witnesses—Their examination in purported exercise of jurisdiction u/s 233(3) Cr.P.C. was for purposes of defeating ends of justice, not permissible under law—Subsequent statements as defence witness were concocted well an after thought—Witnesses were liable to be prosecuted for perjury—Impugned judgment of acquittal was liable to be set aside and conviction liable to be restored.
       Held : In this case the application under Section 311 Cr.P.C. for recalling PW-8 and PW-9 and re-examining them was rejected by the Court on 2.9.1994. Therefore, the question with regard to recalling PW-8 and PW-9 and re-examining them stood closed. There is no provision in the Code of Criminal Procedure that by filing affidavit the witnesses examined as PWs (PW-8 and PW-9 in this case) could be juxtaposed as PW-1 and DW-2 and be examined as defence witnesses on behalf of the accused.(Para 12)
       Section 233 itself deals with entering upon defence by the accused. The application for recalling and re-examining persons already examined, as provided under Section 311 Cr.P.C., was already rejected. The power to summon any person as a witness or recall and re-examine any person already examined is the discretionary power of the Court in case such evidence appears to it to be essential for a just decision of the case. Under Section 233 Cr.P.C. the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence. The provisions of sub-section (3) of Section 233 cannot be understood as compelling the attendance of any prosecution witness examined, cross-examined and discharged to be juxtaposed as DWs. In the present case PW-8 and PW-9 were juxtaposed as PW-1 and DW-2. This situation is not one what was contemplated by sub-section 3 of Section 233 Cr.P.C. When such frivolous and vexatious petitions are filed, a Judge is not powerless. He should have used his discretionary power and should have refused relief on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. In the present case, the witnesses were examined by the prosecution as eyewitnesses on 18.12.1990, cross-examined and discharged. Thereafter, an application under Section 311 Cr.P.C. was rejected. They were recalled purportedly in exercise of power under sub-section (3) of Section 233 Cr.P.C. and examined as DW-1 and DW-2 on behalf of the accused on 17.7.1995. This was clearly for the purpose of defeating the ends of justice, which is not permissible under the law.(Paras 14 & 15)
       In the present case, both PW-8 and PW-9 are related to the deceased. PW-8 is the elder brother of the deceased and PW-9 is the friend of the deceased. Being the close relative and friend of the deceased there is no rhyme and reason to depose falsely against the accused and allowing the real culprit to escape unpunished. On 21.9.1989, their statements were recorded under Section 164 Cr.P.C. before the Magistrate. On 18.12.1990, their depositions were recorded before the Sessions Judge. In both the statements they have stated that they were eyewitnesses and witnessed the occurrence. Both of them have stated that they saw the accused assaulting the deceased with knives and swords. They were subjected to lengthy cross-examination but nothing could be elicited to discredit the statement-in-chief. Their examination as defence witnesses was recorded on 17.7.1995 when they resiled completely from the previous statements as prosecution witnesses. It, therefore, clearly appears that the subsequent statements as defence witnesses were concocted well an after thought. They were either won over or were under threat or intimidation from the accused. No reasonable person, properly instructed in law, would have acted upon such statements.(Para 17)

Judgement Key Points

Based on the provided legal document, here are the key points regarding the judgment:

Legal Principle on Section 233(3) Cr.P.C.: The provisions of Section 233(3) of the Code of Criminal Procedure cannot be interpreted to compel the attendance of a prosecution witness who has already been examined, cross-examined, and discharged, in order to juxtapose them as a defence witness (DW). (!) (!) (!)
Invalidity of Juxtaposing Prosecution Witnesses as Defence Witnesses: There is no provision in the Code of Criminal Procedure that allows witnesses already examined as prosecution witnesses (PWs) to be re-examined as defence witnesses (DWs) merely by filing an affidavit. This specific situation was not contemplated by the law. (!) (!) (!)
Defeating the Ends of Justice: When a petition is frivolous or vexatious, a Judge has the discretionary power to refuse relief if the application is made for the purpose of vexation, delay, or defeating the ends of justice. In this case, allowing the witnesses to be re-examined as defence witnesses after their initial testimony was rejected as an attempt to defeat the ends of justice. (!) (!)
Concocted Evidence and Perjury: The subsequent statements given by the witnesses as defence witnesses were deemed to be "well an after thought" and concocted. Since these witnesses were close relatives or friends of the deceased, there was no logical reason for them to depose falsely against the accused. They are liable for prosecution under Section 193 of the Indian Penal Code for giving false evidence (perjury). (!) (!) (!)
Restoration of Conviction: The impugned judgment of the High Court, which acquitted the respondent based on the re-examined testimony of the prosecution witnesses, is set aside. The conviction recorded by the Trial Court under Sections 302 and 34 of the Indian Penal Code is restored. (!) (!)
Procedural History and Timeline: The witnesses initially gave statements under Section 164 Cr.P.C. in 1989, testified as prosecution witnesses in 1990, filed affidavits claiming coercion in 1994, and were allowed to be re-examined as defence witnesses in 1995. The Supreme Court noted the lack of complaint during the intervening years and the rejection of the Section 311 Cr.P.C. application in 1994. (!) (!) (!) (!)

JUDGMENT

H.K. Sema, J.—This appeal filed by the State of Madhya Pradesh is against the judgment and order of the High Court dated 12.5.2000 passed in Criminal Appeal No. 699 of 1996, whereby the High Court recorded acquittal of respondents-accused herein, by reversing the judgment of the Trial Court convicting the respondent and others under Section 302/34 IPC and sentenced them RI for life and a fine of Rs. 200/- and in default to undergo RI for a period of one month.

2. Briefly stated the facts are as follows:—

On 16.9.1989, the respondents herein were loitering around ‘kothi building’ where the courts are situated in order to find out the deceased Lal Mohd. They were all sitting in an auto rickshaw which was hired by them. Finally, they succeeded in locating the deceased Lal Mohd. who was sitting in a tempo. While the tempo stopped for permitting a lady to alight from it and proceeded ahead, the accused-respondents obstructed the said tempo and they pulled out the deceased Lal Mohd. from the said tempo and assaulted him with swords and knives causing number of injuries, which resulted in his death. The matter was investigated and after a prima facie case being established the charge was laid before the Additional Sessions Judge. The learned Sessions Judge after threadbare discussion of the evidence of prosecution witnesses including the two eye witnesses PW-8 Mohd. Amin and PW-9 Zakir Ali who later juxtaposed as DW-1 and DW-2, came to the conclusion that an offence punishable under Section 302 read with 34 was found well established against the accused and convicted as aforesaid.

3. Before the Trial Court four accused had faced the trial namely accused Badri Yadav, Raju, Mahesh Bhat and Mohan Jayaswal. Accused Mohan Jayaswal died during the trial. Accused Mahesh Bhat was acquitted by the Trial Court on benefit of doubt. Accused Raju died during the pendency of this appeal and, therefore, appeal qua him stands abated. Now only the respondent-accused Badri Yadav is before us.

4. The High Court by the impugned order relied upon the testimony of DW-1 Mohd. Amin and DW-2 Zakir Ali who were examined as eye witnesses as PW-8 and PW-9 and acquitted the respondents by reversing the well merited judgment of the Trial Court convicting the respondents.

5. The facts of this case illustrate a disquieting feature as to how the High Court has committed a grave miscarriage of justice in recording the acquittal of the respondents.

6. Few dates would suffice. PW-8 Mohd. Amin and PW.9 Zakir Ali’s statements were recorded under Section 164 Cr.P.C. before the Magistrate on 21.9.1989. On 18.12.1990 their statements on oath were recorded before the Trial Court as prosecution witnesses.

7. It appears that PW-8 and PW-9 filed an affidavit on 16.8.1994 that the statements made before the Magistrate by them were under pressure, tutored by police of Madhav Nagar and due to their pressure the statements were recorded. It was further stated that the policemen threatened them that if they did not make statements as tutored by the police they would implicate PW-8 and PW-9 in this case and when the statements were recorded before the Magistrate the policemen were standing outside and therefore the statements were made as tutored by the police and due to threat and coercion. By this affidavit they have completely resiled from their previous statements recorded before the court as prosecution witnesses. They further stated that they did not see any marpeet and who had inflicted injuries. They further denied that they did not see any incident at all nor any person. Though the affidavit appeared to be dated 16.8.1994, it was actually signed by both on 17.8.1994.

8. In the affidavit of Zakir Ali PW-9 dated 17.8.1994 it is also stated that his statement was recorded on 18.12.1990 before the Sessions Judge. The affidavit further stated that the statement recorded on 18.12.1990 was made due to threat and under the pressure of police. It is further stated that the applica

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2006 Supreme(SC) 295

IMPORTANT POINTProvisions of Section 233(3) Cr.P.C. can not be understood as compelling the attendance of any prosecution witness examined, cross examined to be juxtaposed as DW.

Cases Referred (1)

IMPORTANT POINT
Provisions of Section 233(3) Cr.P.C. can not be understood as compelling the attendance of any prosecution witness examined, cross examined to be juxtaposed as DW.