Page No.# 1/6 vs The State Of Assam And Anr on 11 February, 2026

                                                                  Page No.# 1/6

GAHC010272782025




                                                                  2026:GAU-
AS:1858

                              THE GAUHATI HIGH COURT
      (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
                              PRADESH)

                              Case No. : Crl.Pet./1556/2025

            SRI AMITABH GOGOI
            SON OF JAGANNATH GOGOI, RESIDENT OF HOUSE NO.29, KEKORA
            NAGAR, HENGRABARI, DISPUR, GUWAHATI-781006.

            VERSUS

            THE STATE OF ASSAM AND ANR
            , REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM.

            2:SRI KANGRESH CHOUDHURY
             SON OF LATE RAM CHANDRA YADAV RESIDENT OF ULUBARI PS
            PALTAN BAZAR DISTRICT KAMRUPM GUWAHATI ASSAM
             PIN 781007 PRESENTLY LODGED IN CENTRAL JAIL
             GUWAHATI LOKHRA ROAD
             PO SAUKUCHI DIST KAMRUP(M) ASSAM PIN 78104

Advocate for the Petitioner   : MR A HAWARI, S SINGH

Advocate for the Respondent : PP, ASSAM, MS M ZOMUANPUII (R-2),MR P DOLEY (R-
2) ,MR J SINGH (R-2),MR H AGARWAL (R-2),MR. B D KONWAR SR. ADV.,MRS J M
KONWAR (R-2)

                             BEFORE
               HONOURABLE MRS. JUSTICE SHAMIMA JAHAN
                             ORDER

Date : 11.02.2026 Heard Mr. S. Singh, learned counsel for the petitioner and Mr. B. D. Konwar, learned Senior counsel, assisted by Mr. P. Doley, learned counsel for the respondent No. 2. Also heard Mr. K. Baishya, learned Addl. PP, Page No.# 2/6

Assam.

2. This is an application filed under Section 528 of the BNSS, 2023, read with Section 442 of the said code, by which the petitioner has challenged the order dated 04.11.2025, passed by the learned Addl. Sessions Judge cum Special Judge (POCSO), Kamrup (M), in Sessions Special Case No. 41/2025, by which the petition for recalling the prosecution witnesses under Section 348 of the BNSS, 2023, has been allowed.

3. Mr. Singh, learned counsel for the petitioner, submits that all the four witnesses, i.e. PW Nos. 1, 2, 3 & 4, were examined and cross- examined at length on various dates in the year 2025 and that after the examination of the accused person under Section 313 of the Cr.PC., the respondent No. 2 had filed an application for re-examination of all the four witnesses on 04.11.2025 and the learned Trial Court, vide order dated 04.11.2025, passed an order, stating inter-alia that the defence intends to cross-examine or more specifically intends to place the contractions and after finding that the contractions would be material ones, which would have bearing on the final outcome of this case, allowed the petition. The learned Trial Court, while allowing the prayer, had imposed a cost of Rs.10,000/-, payable to the victim on her appearance.

4. Mr. Singh, learned counsel for the petitioner, has submitted that allowing the said petition is like filling up the lacuna, inasmuch as all the witnesses were examined and cross-examined at length. He also submits that there are only four witnesses in the instant case and calling all the Page No.# 3/6

four witnesses for re-examination is like holding a re-trial of the said case, which again, according to Mr. Singh, is not permissible under the law.

5. To substantiate his argument, Mr. Singh, learned counsel for the petitioner, has placed judgment of the Apex Court passed in AG vs. Shiv Kumar Yadav passed in Crl. Appeal No. 1187/1188 of 2015, wherein the Apex Court had held that change of counsel cannot be a ground for re-examination of the witnesses and that the Court has to keep in mind not only the need for giving fair opportunity to the accused, but also the need for ensuring that the victim of the crime is not unduly harassed.

6. Mr. Singh, learned counsel for the petitioner, has relied upon the judgment of the Delhi High Court passed in Crl. Rev. P. 312/2025, in which the learned High Court had held that bald averment that certain clarifications are required and some discrepancies have to be highlighted cannot be allowed while dealing with an application under Section 348 of the BNSS, 2023. He as such submits that the order dated 04.11.2025 was bad in law and as such, the same may be interfered with.

7. Mr. B. D. Konwar, learned senior counsel for the respondent No. 2, had, however, placed the application made before the Court of learned Addl. Sessions Judge cum Special Judge (POCSO), Kamrup (M), Guwahati, on 04.11.2025, wherein he had narrated in details the points that he wants to raise during the re-examination of the said four witnesses. He has also placed a chart where certain omissions on the part of the prosecution witnesses were highlighted. He further submits that Page No.# 4/6

whether those omissions would amount to contradictions under Section 162 Cr.P.C., the same would be decided while re-examining the witnesses. As far as the victim is concerned, he submits that few statements were not stated before the Investigating Officer and the same were stated for the first time before the learned Trial Court and the same was not placed before her by the counsel concerned and, according to him, the said statement would amount to contradictions, which would have the effect of nullifying her statement made before the learned Trial Court. Similar are his submission in respect of PW Nos. 1 & 3 as well, who, according to him, had submitted many averments for the first time before the learned Trial Court. He further submits that after putting forth the said omissions before PW Nos. 1, 2 & 3, the said statement would be put to the Investigating Officer in order to bring forth the contradictions in the instant case. As such, he submits that his application for recalling the witnesses was properly adjudicated upon and allowed. He also submits that he had already paid the cost of Rs. 10,000/- in the learned Trial Court, as ordered by the learned Trial Court.

8. I have heard the learned counsels for the parties and gone through the records.

9. Section 348 of the BNSS, 2023 may be quoted herein below as follows:-

"348. Power to summon material witness, or examine person present

--Any Court may, at any stage of any inquiry, trial or other proceeding under this Sanhita, summon any person as a witness, or examine any person in Page No.# 5/6

attendance, though not summoned as a witness, or re-call and re-examine any person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."

10. It is a settled position of law that any Court may at any stage of trial, summon a witness for re-examination, if it appears essential to the just decision of the case. It is noticed that the victim had not made the subsequent statements after she left the house of the accused person as to who came and who took her and as to whom she divulged the incident at the first instance, which she had stated before the learned Trial Court. Similarly, the father of the victim (PW1) had also not made few statements before the Investigating Officer, which he had deposed before the learned Trial Court for the first time. Similar is the case of PW3 (the mother of the victim).

11. It is no res-integra that a contradiction or an omission amounting to contraction has to be first put forth to the witnesses concern, who if agrees the contradiction stands proves, but if the said witness denies, the said contraction has to be put forth before the Police Officer. As such, the examination of PW4, i.e., Investigating Officer, would also be required in such a case, if the above omissions/contradictions are denied by the witnesses concern. Further, it is noticed in the order dated 04.11.2025 that the learned Trial Court had gone into the application and has formed an opinion that the points, which defence intends to cross-examine or the contradictions, which they intend to take, are material ones and will have a bearing on the final outcome of the case. As such, it cannot be said that Page No.# 6/6

the learned Trial Court has not applied its mind or the learned Trial Court has not given any reason while allowing the petition. The learned Trial Court has also imposed the cost upon the respondent. As such, this Court deems it fit that the respondent be allowed to re-examine the witnesses concern, i.e., PW Nos. 1, 2, 3 & 4, but without causing any delay to the proceedings of the Court and without harassing the victim concerned to the minimum. The said re-examination should be expedited and should be over within a day or two and it is directed that the learned Trial Court should see and apply the law, which is applicable under Section 348 of the BNSS, as far as the scope of re-examination is concerned.

12. This criminal petition is accordingly disposed of.

JUDGE

Comparing Assistant