The power under Section 311 Cr.P.C. is not meant for recalling a witness for cross-examination, but for re-examination.

Karuna Nand Bajpayee, J.

1. Heard learned counsel for the applicant and learned AGA.

2. This application under section 482 Cr.P.C. has been filed seeking the quashing of order dated 21.01.2016 passed by learned court below rejecting the application moved on behalf of the accused under section 311 Cr.P.C. in Case Crime No. 1007 of 2012 (State v. Veer Pal and another, under sections 147, 302, 34 IPC, P.S. Kasana, District Gautambudh Nagar in Criminal Trial No. 248 of 2013) which had sought the recall of the witness for further cross examination.

Submission of the counsel is that subsequently after the witness had been examined in the court, he the O.P. No.2, was also examined in another proceeding and in that proceeding he has given certain statement which was not in consonance with his earlier deposition and, therefore, witnesses ought to have been recalled for further cross-examination in the context and perspective of his another deposition which he subsequently gave in another proceeding. Submission is that refusal by the court to recall the witnesses is, therefore, bad in the eyes of law.

3. Heard learned AGA and perused the impugned order.

4. First of all it may be observed that witness may be cross-examined in order to impeach his testimony with regard to his previous statement and not with regard to the statement which he might give subsequently after having being examined in the court. This process can possibly never end and witnesses may go on giving many statements contrary to the facts about which they have already stated in the court. If before being examined in the court witness had given statements which were contradictory in nature, then he can always be cross-examined with regard to it and his attention may be drawn to the same and he may be confronted under section 145 of the Evidence Act with such previous contradictory statements. It would be useful to cast a glance on Section-145 of Indian Evidence Act in this regard which reads as follows :

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, and relevant to matters in question, without such writing 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."

5. It shall also be relevant to keep in view Section-155 of Indian Evidence Act which reads thus :

"155 : Impeaching credit of witness.- The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him :-

(1) ….................

(2) …................

(3) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted"

6. A combined reading of aforesaid two sections would be sufficient to clarify the position of law in this regard. The credit of a witness may be impeached by proof of the earlier inconsistent statements which he might have given in that context to someone. If such in-congruent or inconsistent statements have been reduced to writing then before such writing may be proved in the court, the attention of the witness shall have to be drawn to such contradictory versions. It is so apparent that when a witness is being examined in the court there is no question to cross-examine him with regard to his future statements which he has not yet given. Apart from this as has already been said that if subsequently after the deposition of witness is over, he gives at different forums any other statement incompatible with his earlier deposition in the court, it is so very difficult to know or guess the possible reasons behind the same. If the witness shall be called back to explain such incompatibilities he may offer some kind of explanation or the other in this regard. But thereafter again after