Once a witness is examined as a prosecution witness, they cannot be recalled merely because they filed an affidavit contrary to their earlier deposition.

The petitioners have knocked the door of this Court by preferring this revision petition under Sections 397 & 401 of Cr. P.C., 1973 being dissatisfied with the order dated 12-2-2014 passed by the Special Judge, Bhind in Special Case No.122/2010, whereby application of the petitioners filed under Section 311 of Cr.P.C. for recalling the prosecution witnesses for further cross-examination has been rejected.

2. Brief facts giving rise to this petition are that the petitioners are facing trial for the charges under Sections 302 and 324 read with Section 34 of IPC before the Special Judge, Bhind. The prosecution has examined the prosecution witnesses. Thereafter, the petitioners have preferred an application under Section 311 of the Code for recalling the prosecution witnesses Anantram and Raghuveer for further cross-examination. The petitioners have preferred Cri. Revision No. 269/2013 before this Court challenging the said order, which has been disposed of vide order dated 30-1-2014 with the following observations. :

'After hearing learned counsel for the parties, no case for interference is made out at this stage. Hence, this petition is disposed of with direction that petitioners shall be at liberty to file a fresh petition/application at the appropriate stage of the trial, if law permits, which shall be considered and decided by the trial Court, on its own merits'.

3. In view of the aforesaid the petitioners have preferred an application under Section 311 of Cr.P.C. for recalling the prosecution witnesses Anantram and Raghuveer on the ground that they have filed their affidavits denying witnessing the incident. The learned trial Court has dismissed the application holding that earlier also the application was made for recalling the witnesses for cross-examination, which was dismissed on considering the merits, no new ground is made out to allow the application. Being aggrieved this revision petition has been preferred.

4. It is submitted by learned counsel that the impugned order is illegal, arbitrary and contrary to the law, hence deserves to be set aside. The prosecution witnesses Anantram and Raghuveer are the relatives of deceased Jiwaram and they have been pressurized by the Police to give false statements claiming to be an eye-witnesses, however, they were not present at the time of incident. Thus, they are not the eye-witnesses and under these circumstances they have filed affidavits that they were not on the spot and under the pressure of the Police they have given statements. In view of this they should have been recalled for cross-examination. It is prayed that the impugned order be set aside.

5. Learned counsel for the State supported the impugned order.

6. I have considered the rival submissions of the learned counsel for the parties and perused the record.

7. From the copies of the statements of the witnesses Anantram and Raghuveer, it appears that they have stated that they witnessed the incident. The accused persons have given beating to Jiwaram and Raghuveer, who have been died. In the affidavits both these witnesses have stated that they were not present at the spot, they have not witnessed the incident, then they reached the spot.

8. Learned counsel for the petitioners placing reliance on the decision of the single Bench of this Court rendered in the case of Mangilal v. State of M.P., reported in 1997(1) MPWN 138 : (1998 Cri LJ 2304) (MP), submitted that learned trial Court ought to have recalled the witnesses in the light of their affidavits for further cross-examination. The reliance has also been placed in Allahabad High Court's judgment rendered in the case of Sukkhan and another v. State of U.P., reported in 1988(1) Crimes 245 : (1988 ALJ 175 (All) wherein it has been held that when the affidavit has been sworn by the first informant denying having seen the occurrence, he should be called for further cross-examination and be confronted with the statement contained in the affidavit.

9. The Hon'ble Apex