ORAL ORDER

1. This revision application under Section 438 read with Section 442 of The Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as “BNSS”) is filed challenging an order passed by the learned 4^th Additional Sessions Judge, Surat, dated 23.07.2024 below Exhibit-134 in Sessions Case No. 175 of 2022, whereby an application given on behalf of the accused under Section 311 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) for recalling Four Witnesses being PW-3, PW-4, PW-1 and PW-2, came to be rejected.

2. Heard Mr. Harshit Tolia, Senior Advocate, Learned Counsel, assisted by Mr. Parth S. Tolia, learned advocate for the applicant.

2.1 According to his submission, these Four witnesses are required to be recalled in view of the fact that what they asserted in the deposition about the weapon of offence is contradictory to the deposition of the Doctor and the history given by the witnesses to him. Therefore, to prove that contradiction, witnesses are required to be recalled.

2.2 Another ground pleaded and submitted that deposition of PW-1 is recorded under the Vulnerable Witness Room, and therefore, he is required to be recalled.

3. As coming out from the order, in a very elaborate manner in para 10, learned Judge has answered the submission made on behalf of the accused to recall the witness on the ground of contradiction in the deposition of witnesses. It would be profitable to quote the entire paragraph, which is as under:-

“10. In the present case, the Ld. Advocate appearing for the accused has cited several contradictions in the statements of the witnesses. At the same time it is to be seen that if there are contradictions and the witness has not explained anything regarding the same it goes to the benefit of the accused, but, at the same time it is also to be noted that such things can be taken up by the defence side during the course of arguments. The statement of one witness is not necessarily to be put to the other witness for seeking explanation on the same by re-calling the witness. It is only when the witness has been examined, any contradiction in his statement can be put to him in cross- examination. However, the statement of other witnesses are not to be put to a witnesses if that witness is stating against the statement of the other witness or is not deposing in line with the other witness. Even otherwise, the Advocate appearing for the accused persons had a fair opportunity of cross-examining these witnesses at length which has been done and therefore, now in my opinion just to seek as explanation on the points raised by the defence side there is no need for Court to re-call and re-examine these witnesses.”

As such, once evidence is led before the Court, no contradiction is required to be proved in between the depositions of witnesses. Contradiction has its own connotation and the import under “the Code”, now “BNSS”.

4. As such, if there are contradictory depositions in between the witnesses, it is a matter of argument as recorded by the learned Judge, and therefore, there is no requirement of recalling the witnesses. So far as examination of PW-1 in Vulnerable Witness Room is concerned, maybe on whatever ground he is examined in that witness room, it has nothing to do with recalling him. At the same time, no prejudice is caused to the accused so as to recall that witness.

5. As recorded in para 11 of the impugned order, he had been cross-examined in detail and no prejudice is caused to the case of the accused only because he is examined, as having some threat administered because of the family members of the accused in a group arrived in the Court, because of which he might have expressed his fear to be examined before any open Court.

6. At any rate, examination of witness in the Vulnerable Witness Room is no ground to recall a witness. Though there is no date when those witnesses were examined before the Court, it appears that in all 29 witnesses are already examined and c