Allahabad High Court
Govind vs State Of U.P. & Anr. on 9 February, 2021
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 27
Case :- CRIMINAL REVISION No. - 105 of 2021
Revisionist :- Govind
Opposite Party :- State Of U.P. & Anr.
Counsel for Revisionist :- Dinesh Kumar Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Alok Mathur,J.
1. Heard Sri D. K. Srivastava, learned counsel for the revisionist as well as learned A.G.A. for the State.
2. By means of present revision the revisionist has assailed the order dated 25.1.2021 passed by Additional Sessions Judge, POCSO Act, Ambedkar Nagar in Sessions Trial No.159/2016 whereby application under Section 311 Cr.P.C. for recall of P.W.-1 has been rejected.
3. It has been submitted by learned counsel for the revisionist that he had moved an application under Section 311 Cr.P.C. for recalling of prosecution witness No.1 to determine: (a) as to whether the F.I.R. was lodged on the statement given by P.W. 1 or not, (b) regarding age of the prosecutrix at the time of the incident, (c) with regard to wedding of the prosecution with the accused, (d) some other relevant questions with regard to change in the statement given in the first information report. It has been submitted by learned counsel for the revisionist that with regard to aforesaid facts as the question could not be put forth to the said witness and for which purpose he wants an opportunity to cross examine P.W.1.
4. Learned A.G.A. has opposed the revision and submits that a perusal of the application preferred by the revisionist would indicate that all the questions proposed to be put to the witness were with regard to the facts existing at the time when cross examination was done. There is no fact which has come subsequently or new fact on the basis of which the said application has been moved and, therefore, it has rightly been rejected by the trial court. He further submits that the statement of the said witness was recorded starting from 14.1.2016 and concluded on 17.5.2018 whereby nearly two years and four months' time had been consumed with regard to recording of chief and cross examination of the said witness.
5. Learned trial court while rejecting the said application has also considered the application moved by the revisionist. It has also taken note of the fact that the said witness was cross examined for nearly two and half years starting from 14.1.2016 to 17.1.2018 and also recorded that there is no ground on the basis of which the said recall of the the first witness can be allowed. It was also taken note of the fact that the said application is being moved only for delaying the said trial.
6. Learned counsel for the revisionist could not counter or give any satisfactory reply to the aforesaid objections. We have also taken note of the fact that the said witness was duly cross examined, therefore, it cannot be said that no opportunity was granted to counsel for the accused to cross examine the said witness. All the questions which had been put forth in the said application are mostly the questions which should have been put to the witness during cross examination, hence, the recall of the witness cannot be permitted for the said purpose where even after giving full opportunity to the accused or his counsel they failed to put question which according to them are relevant to bring forth the defence of the accused. It is only in exceptional circumstances that recall of the witness can be permitted only after it is clearly demonstrated that there has been a prejudice caused to the accused at the stage of cross examination. No such fact has been pleaded or brought forth in the present revision.
7. In support of his contentions, learned counsel for the revisionist has relied upon the a judgment of this Court in the case of Rajkapoor Bind Vs. State of UP. and another, 2017 (2) JIC 495 (All.) In the said case the court had allowed the recall of the witness after imposing a cost of Rs.5000/-.
8. I have gone through the said judgment and in the said judgment the facts were clearly distinguishable in as much as the counsel therein was unable to cross examine the informant/complainant due to his own illness, therefore, he engaged another counsel. In the aforesaid circumstances, on the ground of illness of the counsel, the said application for recall of the witness was allowed and this Court gave a favourable finding only in this regard and allowed the recall of the witness. In the present case there is no reason as to why the said questions could not be put by the revisionist to the prosecution witness.
9. I have considered the judgment passed by learned trial court and I do not find any error in the same nor any ground for interference in the same is made out. Accordingly, the revision is dismissed.
Order Date :- 9.2.2021 (Alok Mathur, J.)
RKM.
