Murder Accused May Argue Later Witness Disputes At Trial, But P&H HC Upholds Refusal To Recall Complainant On Vague, Delayed Plea

The petitioner, an accused in a murder case, sought revision of the trial court’s order dismissing his application under Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), to recall PW-1 Satender for further cross-examination.

PW-1 had been examined and cross-examined on 22 July 2025.

The recall application, filed on 14 May 2026, stated generally that he had not been effectively cross-examined because of circumstances beyond the accused’s and counsel’s control, but did not identify the matters requiring further questioning.

The petitioner later relied on testimony by two other prosecution witnesses, who denied witnessing the occurrence and gave a different account of PW-1’s whereabouts.

The trial court dismissed the application, noting its vagueness and the advanced stage of the trial.

Section 348 BNSS, corresponding to Section 311 of the Code of Criminal Procedure, 1973, empowers a court to summon, recall, or re-examine a witness at any stage where the evidence is essential to the just decision of the case.

Under Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461, that discretion must be exercised judiciously, not arbitrarily, and recall must be essential to reaching a just decision.

Under State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402, recall is not available as a matter of course; tangible reasons must show how the fair trial has suffered, and a general claim of ineffective cross-examination or the accused’s custody is insufficient.

The court found the application vague: it identified neither the circumstances preventing effective cross-examination nor the questions left to be asked.

PW-1 had already been cross-examined at length on the same day as his examination-in-chief, including on his presence at the scene, and the recall request was made about ten months after his discharge without explanation for the delay.

The later testimony of PW-11 and PW-26 could not establish error in the trial court’s decision because those witnesses testified after the recall application had been filed, and that ground had not been raised before the trial court.

Their differing accounts were matters for assessment at trial; the defence had already put its challenge to PW-1’s presence to him, and no specific further question was identified.

The revision petition was dismissed.

The petitioner remained at liberty to rely on available pleas at final arguments, and the court clarified that it expressed no view on the merits or witness credibility.