P&H HC Upholds Refusal To Recall Police Witness After Lengthy Cross-Examination Over Affidavit Saying He Registered FIR Under Misconception

In brief

The question

Whether PW-3 should be recalled under Section 311 Cr.P.C. (now Section 348 BNSS) for further cross-examination so the petitioner could confront him with his subsequent affidavit

The court held

The Court held that the trial court had correctly assessed the facts and material on record and that no interference was warranted

It also directed

The petition was dismissed, and any pending miscellaneous applications were also disposed of

01Facts

The petitioner-accused challenged the Additional Sessions Judge, Kurukshetra’s order dismissing his application under Section 311 Cr.P.C. (now Section 348 BNSS) to recall PW-3 Rajnish for further cross-examination

p. 1 · ¶ 1

The petitioner sought to confront PW-3 with an affidavit dated 21 September 2024, in which PW-3 reportedly stated that the FIR had been lodged under a misconception and that he had no objection to its cancellation

p. 2 · ¶ 5 · p. 3 · ¶ 7

The prosecution opposed recall on the grounds that PW-3 had already been cross-examined at length and that the application sought to change his earlier version

p. 2 · ¶ 6

02Issues

i.Whether PW-3 should be recalled under Section 311 Cr.P.C. (now Section 348 BNSS) for further cross-examination so the petitioner could confront him with his subsequent affidavit

p. 1 · ¶ 1 · p. 2 · ¶ 5–6

ii.Whether the trial court’s refusal to recall PW-3 warranted interference by the High Court

p. 4 · ¶ 8

03Law Applied

Section 311 Cr.P.C. empowers a court to recall or re-examine a witness where doing so is essential to the just decision of the case

p. 3 · ¶ 7

That power is not to be used merely to allow a party to improve its case, fill lacunae, or introduce a subsequent contradictory version

p. 3 · ¶ 7

The judgment identifies Section 348 BNSS as the corresponding provision under the new statute

p. 1 · ¶ 1

Provisions in the judgment · 2 · Linked ones open on LawLens

Code of Criminal Procedure, 1973 Section 311

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 348

04Reasoning

The Court noted that PW-3 had already been examined by the prosecution and cross-examined at length by the accused; his testimony was that the police party had been assaulted while performing its duties

p. 3 · ¶ 7

The application did not specify the questions that had allegedly been omitted, and the affidavit did not justify recalling the witness to resile from his earlier version

p. 3 · ¶ 7

The Court further observed that, if the affidavit had already been executed, it should have been put to PW-3 during the earlier cross-examination

p. 3 · ¶ 7

It therefore found no basis to treat further cross-examination as essential to the just decision of the case.

p. 3 · ¶ 7