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S 311 CrPC - Witness Can't Be Recalled Merely Because He Gave A Different Statement In Another Case Relating To Same Incident : Supreme Court

Mehal Jain
23 Jun 2022 6:23 AM GMT
S 311 CrPC - Witness Cant Be Recalled Merely Because He Gave A Different Statement In Another Case Relating To Same Incident : Supreme Court
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The Supreme Court has held that "merely because a different statement was given by the same prosecution witness in another case relating to the same incident, that itself would not be a reason for recalling the witness under section 311, Cr. P. C."

The petitioner is facing trial in a murder case. In 2014, during the trial, one prosecution witness named Naushad gave a statement that he had identified the petitioner as one of the assailants carrying rifle. Relating to the crime, the petitioner was facing another trial under the Gangsters Act. In the proceedings under the Gangsters Act, the same witness Naushad gave a statement in 2021 that he could not identify the petitioner as one of the assailants as he was wearing a cloth over his face. Relying on the second statement given by the witness in 2021, the petitioner sought to recall him as a witness in the first trial. The trial court rejected this application and the High Court affirmed the rejection. In this backdrop, he approached the Supreme Court.

Affirming the trial court's view, the Supreme Court bench of Justices Ravikumar and Dhulia proceeded to assert, "The trial court has rejected this application and in our view rightly so, for the reasons that merely because a different statement given by the same prosecution witness in another case that itself would not be a reason for recalling the witness and that too, after a period of seven years."

The bench added, "It is not a case where a contradictory statement was given by some other witnesses in the present trial."
The bench noted that the petitioner/accused has relied upon the judgment of the top court in Sudevanand v. State Through Central Bureau of Investigation (2012), contending that under the similar circumstances, the Court had allowed the recalling of a witness under section 311. Distinguishing the case, the bench observed,
"However, we do not agree with the same. The case relied upon by the petitioner/accused, that is, in Sudevanand's case (supra) is on an entirely different factual matrix. In the said case, the witness had given two different versions that is one before the trial court and the different one before the Inquiry Commission, where he had turned into an approver...Therefore, in our view the reliance by the petitioner on the above decision is entirely misplaced."

The bench then passed the following order- "Under these circumstances, we are not inclined to interfere with the order impugned passed by the High Court. Accordingly, the special leave petition is dismissed."
Section 311 of the Cr. P. C. provides the 'Power to summon material witness, or examine person present'- "Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case"

Case Title: SAUD FAISAL v. STATE OF UTTAR PRADESH & ANR.
Citation : 2022 LiveLaw (SC) 556
Code of Criminal Procedure 1973 - Section 311 -Merely because a different statement given by the same prosecution witness in another case that itself would not be a reason for recalling the witness

Click Here To Read/Download Order



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