Criminal Writ Petition No.427 of 2007

7th September, 2007

Petitioner Counsel: Mr. N. S. KHANDEWALE
Respondent Counsel: Mr. EJAZ KHAN

JUDGMENT

JUDGMENT :- Rule. Returnable forthwith.

2. Heard finally with consent of the parties.

3. This is Criminal Writ Petition against the order passed by the Sessions Judge, whereby he allowed re-examination of the witness for the prosecution.

4. The accused are facing trial under Section 302 and various other Sections of Indian Penal Code. The trial is in progress. The prosecution examined one Suresh Khandate as witness no.3. After the conclusion of the cross-examination on behalf of the accused, the learned Special Public Prosecutor made a prayer to the court that he may be allowed to re-examine the witness in order to clear the ambiguities. It was his contention that the witness had stated that both the statements i.e. one recorded by the C.B.I. and the other recorded by the Magistrate under Section 164 of Cr.P.Code were correct. The learned Sessions Judge found that in order to clear the ambiguity, it was necessary to allow such re-examination. Being aggrieved by that order, this writ petition has been filed.

5. I have heard the learned counsel for the petitioners and the respondent.

6. The learned Special Prosecutor had sought to re-examine the witness on the ground that the witness had given two inconsistent statements before the court. These two inconsistent statements as far as portion marked 'C' is concerned, are to the following effect. He initially stated that Surekha was first dipped into a drainage water and she was assaulted near the drainage. Subsequently, he stated that Surekha had fallen down in the cowdung pit, she was taken out and she was beaten near the cow-dung pit. It was contended before the Sessions Judge that both the statements could not be correct and either of them is not correct and therefore, the prosecution wanted that to be clarified.

7. The learned prosecutor had also made a request to put questions in re-examination with regard to portion which is marked as portion 'D' in the statement recorded by the Magistrate. The witness has stated that his statement before C.B.I. that he saw dead bodies being put and taken away in a bullock-cart is correct and he also states that the statement before the Magistrate that he could not look at the dead bodies and hence he went inside the house and does not know what happened thereafter, also to be truth. It was contended that both these statements are inconsistent and therefore it was necessary to get a clarification from the witness. It was also submitted on behalf of the respondent/prosecution that this is an ambiguity which needs to be clarified. In fact, it has to be borne in mind that the previous statements of the witness are not the substantive evidence. The substantive evidence is only before the court i.e. the deposition before the court. In this case, it can, therefore, be said that witness had given inconsistent answers at two stages. Although those answers may be inconsistent, they are certainly not ambiguous. No ambiguity had occurred in the cross-examination. On the other hand, the witness has given clear statement before the court on oath that both facts are correct. Thus, the witness certainly wants to give inconsistent statement before the court on oath. Further it has to be borne in mind that the learned Sessions Judge has marked portion C & D in the statement before the Magistrate. In fact, there was no need to mark those portions as C & D because the witness has admitted those portions with which he was confronted. Since there was an admission by the witness that those statements i.e. before the Magistrate were correct, they should not have been marked as portions C & D. I may observe that although those two statements cannot be reconciled, they independently are not ambiguous. They being not ambiguous at all, there is no question of allowing any reexamination to clarify them. The objective of the re-examination should never be to set at naught the cross-examination done. The word ambiguity has been defined in dictionary as "of double meaning". Neither of the two statements before the court can be said to be ambiguous i.e. of double meaning. The only thing that has occurred is that they cannot be reconciled with each other. To my mind, if they are allowed to be reconciled, the entire cross-examination would be set at naught. Further, if a witness gives two inconsistent answers during the course of his examination before the court, there is no question of use of Section 145 of the Evidence Act. Section 145 of the Evidence Act can be made use of only for the purpose of contradicting the witness with his previous statement. Here, two inconsistent statements are made by the witness on oath before the court. It is not that the witness has resiled from previous statement either before the Magistrate or before the C.B.I. There was, therefore, no question of use of Section 145 of the Evidence Act at all and the learned Sessions Judge, therefore, to my mind, certainly fell in error in allowing the re-examination of the witness. The petition therefore must succeed. Hence, the following order.

The petition is allowed.

The order passed by the Sessions Judge allowing re-examination is set aside. The prayer for re-examination of witness is rejected.

Petition allowed.