Dismissed

Rajesh Das v. State Rep by

Madras HC27 Apr 2023CRL OP/8045/2023

Case brief

AI extract

What is this about?

The High Court upheld the dismissal of a petition seeking witness recall under Section 311 Cr.P.C. The court held that witnesses already extensively cross-examined cannot be recalled to contradict evidence via another witness, citing established principles against harassment and barring use of other witnesses' evidence for cross-examination under Section 145.

What did the court decide?

The order dismissing the petition for recall of PW.1 and PW.6 under Section 311 Cr.P.C. was confirmed and the Criminal Original Petition was dismissed.

Rajesh Das Vs State Rep by — Criminal Trial and Appeal | Madras HC (2023)

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Crl.O.P.No.8045 of 2023 and Crl.M.P.No.5102 of 2023

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Orders reserved on Orders pronounced on 19.04.2023 27.04.2023

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CORAM

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THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN

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Crl.O.P.No.8045 of 2023 and Crl.M.P.No.5102 of 2023

Mr.Rajesh Das

... Petitioner

Vs.

State, rep. by Superintendent of Police-II Crime Branch CID Pantheon Road Egmore Chennai-600008. ... Respondent

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This Criminal Original Petition is filed under Section 482 Cr.P.C. to set aside the impugned order dated 23.03.2023 passed by the learned Chief Judicial Magistrate, Villupuram in Crl.M.P.No.1962 of 2023 in C.C. No.231 of 2021 and consequently, direct to allow the petition to recall the witnesses PW.1 - Tmt.Nisha Parthiban (LW-1) and PW.6 - Mr.Parthiban (LW-2), filed by the petitioner under section 311 of Cr.P.C. in C.C.No.231 of 2021 on the file of the learned Chief Judicial Magistrate, Villupuram.

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https://www.mhc.tn.gov.in/judis

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Crl.O.P.No.8045 of 2023 and Crl.M.P.No.5102 of 2023

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For Petitioner : Mr.Abdul Saleem Senior Counsel for M/s.M.Vijayamehanath For Respondent : Mr.Leonard Arul Joseph Selvam Government Advocate (Crl. Side)

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ORDER

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This petition is filed for setting aside the impugned order dated 23.03.2023 passed by the learned Chief Judicial Magistrate, Villupuram in Crl.M.P.No.1962 of 2023 in C.C.No.231 of 2021 and consequently, directing to allow the petition to recall the witnesses PW.1 Tmt.Nisha Parthiban (LW-1) and PW.6 Mr.Parthiban (LW-2) .

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Learned counsel for petitioner submitted that petitioner filed Crl.M.P.No.1962 of 2023 in C.C.No.231 of 2021 on the file of learned Chief Judicial Magistrate, Villupuram for recalling PW.1 and PW.6. The reason for recalling PW.1 and PW.6 is that after examining them, PW.58 and PW.59

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https://www.mhc.tn.gov.in/judis

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Crl.O.P.No.8045 of 2023 and Crl.M.P.No.5102 of 2023

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were examined. The evidence of PW.58 and PW.59 has to be confronted

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with PW.1 and PW.6. There is a large conspiracy against the petitioner, wherein certain top officials conspired to spoil the carrier of petitioner. Only if petitioner is permitted to recall PW.1 and PW.6 for the purpose of further cross examination on the evidence of PW.58 and PW.59, petitioner would be in a position to expose the conspiracy against him and establish his innocence. Without considering the merits in the claim of petitioner, learned Chief Judicial Magistrate, Villupuram, dismissed the petition. Challenging the said order, this petition is filed. Learned counsel for petitioner also relied on the judgment reported in (2013) 5 SCC 741 (Natasha Singh ..vs.. Central Bureau of Investigation (State)) for the proposition that fair trial requires, the accused must be given full opportunity of cross examining witnesses.

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Learned Government Advocate (Criminal Side) opposed this

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petition on the ground that PW.1 and PW.6 were extensively cross examined by petitioner. Petitioner has the habit of filing petitions for recalling

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https://www.mhc.tn.gov.in/judis

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Crl.O.P.No.8045 of 2023 and Crl.M.P.No.5102 of 2023

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witnesses long after their examination in chief. Repeated examination of witnesses would be harassment to the witnesses and it would affect the conduct of the trial. Learned Chief Judicial Magistrate, Villupuram has rightly dismissed the petition.

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Considered the rival submissions and perused the records.

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It is seen from the petition filed under Section 311 Cr.P.C that petitioner claims that PW.1 lodged a number of complaints before PW.58 - Mr.J.K.Tripathi and PW.59 - Mr.S.K.Prabhakar. In the alleged first complaint nothing is found against petitioner and thus, that complaint was not produced by the prosecution. PW.58 - Mr.J.K.Tripathi was the Former Head of the Police Force / D.G.P. of Tamil Nadu. He was examined on 25.11.2022. On the basis of his evidence, some facts have to be confronted and elucidated through PW.1 and PW.6. Thus, it is seen from the petition averments that petitioner wants to confront PW.1 and PW.6 on the basis of evidence of PW.58. Learned counsel has also produced the contradictions

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https://www.mhc.tn.gov.in/judis

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Crl.O.P.No.8045 of 2023 and Crl.M.P.No.5102 of 2023

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between the evidence of PW.58, PW.59, PW.1 and PW.6 for the perusal of this Court. The evidence of PW.1 and PW.6 is also produced for the perusal of the Court. From the evidence of PW.1, it is seen that she was extensively cross examined and her evidence runs to 173 pages. Similarly, the evidence of PW.6 also runs into 17 pages. He was also extensively cross examined.

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It is seen from the order of learned Chief Judicial Magistrate that the examination of PW.1 was commenced on 11.11.2021 and chief examination was completed on 12.11.2021. She was cross examined by A2 on 10.12.2021. Thereafter, PW.1 was cross examined on the side of petitioner from 10.12.2021 to 10.06.2022 on 13 hearings. PW.6 was examined in chief on 10.12.2021 and was cross examined on the same date. Again, PW.6 was cross examined by petitioner on 13.07.2022. Petitioner filed petition to recall PW.2 to PW.4 in Crl.M.P.Nos.1354 of 2023 and 1355 of 2023 after the examination of PW.58. Those petitions were allowed and now the present petition was filed for recall of PW.1 and PW.6. Finding that the reasons stated for recall of PW.1 and PW.6 cannot be entertained and

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https://www.mhc.tn.gov.in/judis

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Crl.O.P.No.8045 of 2023 and Crl.M.P.No.5102 of 2023

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that, petitioner has repeatedly filed petitions for recall of witnesses, learned Chief Judicial Magistrate dismissed the petition. As already indicated, PW.1 and PW.6 have been extensively cross examined by petitioner.

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It is settled proposition of law that the evidence of one witness

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cannot be used for the purpose of cross examination of other witnesses for eliciting contradictions. It is pertinent to refer the judgment of Hon'ble

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Supreme Court reported in (2004) 1 SCC 184 (Chaudhari Ramjibhai Narasangbhai ..vs.. State of Gujarat and others), wherein it is observed as follows:-

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“11. Coming to the plea that the

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contradictions noticed by the trial Court were

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ocular vis-a-vis the medical evidence, we find on reading of the judgment it is not to be so, Section 145 of the Indian Evidence Act, 1872 (in short the "Evidence Act") applies when same person makes

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two contradictory statements. It is not permissible

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https://www.mhc.tn.gov.in/judis

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Crl.O.P.No.8045 of 2023 and Crl.M.P.No.5102 of 2023

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in law to draw adverse inference because of alleged contradictions between one prosecution witness vis-a-vis statement of other witnesses. It is not open to Court to completely demolish evidence of one witness by referring to the evidence of other witnesses. Witnesses can only be contradicted in terms of Section 145 of the Evidence Act by his own previous statement and not with the statement of any other witness. (See Mohanlal Gangaram Gehani v. State of Maharashtra, AIR (1982) SC 839). As was held in the said case, Section 145 applies only to cases where the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding. If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statement under Section 145 of the

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https://www.mhc.tn.gov.in/judis

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Crl.O.P.No.8045 of 2023 and Crl.M.P.No.5102 of 2023

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Evidence Act only. Section 145 has no application

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where a witness is sought to be contradicted not by

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his own statement but by the statement of another

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witness. ”

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Therefore, prayer to recall PW.1 and PW.6 for confronting them on the basis of the evidence of PW.58 cannot be entertained.

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That apart, if the witnesses are repeatedly examined, there bound to occur some inconsistencies and contradictions in the evidence due to fading and failing memory, long after the incident, chief examination and cross examination. If the inconsistent and contradictory evidence is allowed to be recorded, due to the fault on the part of the accused, in not immediately cross examining the witnesses, there is a possibility that that would materially affect the outcome of the case. The Hon'ble Supreme Court and this Court has time and again reiterated that witnesses should not be recalled for the purpose of cross examination again and again. In fact, the chief examination and cross examination should be completed on the

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https://www.mhc.tn.gov.in/judis

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Crl.O.P.No.8045 of 2023 and Crl.M.P.No.5102 of 2023

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same date. It is the dictum of the Hon'ble Supreme Court laid down in

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Vinod Kumar ..vs.. State of Punjab .

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The judgment relied by learned counsel for petitioner is not

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applicable to the facts of this case for the reason that that was the case where the prayer for examination of witnesses was not considered favourably. It is not the case where the prayer by petitioner for cross examination of witnesses was refused. Petitioner wants PW.1 and PW.6 to be summoned for further cross examination. Therefore, the judgment relied by learned counsel for petitioner is not applicable to the facts of this case.

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This Court finds from the records that PW.1 and PW.6 had been extensively cross examined and that, they cannot be permitted to confront and contradict the evidence of PW.1 and PW.6 on the basis of evidence of PW.58. Learned Chief Judicial Magistrate has rightly considered the issue and dismissed the petition. This Court does not find any reason to take a different view of the matter and therefore, the order passed by learned Chief

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https://www.mhc.tn.gov.in/judis

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Crl.O.P.No.8045 of 2023 and Crl.M.P.No.5102 of 2023

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Judicial Magistrate, Villupuram in Crl.M.P.No.1962 of 2023 in C.C. No.231 of 2021 on 23.03.2023 is confirmed and this Criminal Original Petition is

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dismissed. Consequently, connected Miscellaneous Petition is closed.

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Mra