Fully Cross-Examined Witness Cannot Be Recalled To Resile From Earlier Testimony Given Before Court: MP High Court

The Madhya Pradesh High Court has made it clear that a witness who has been fully examined by the trial court cannot be recalled merely on the ground that such witness later resiled from his/her deposition.

The bench of Justice Dinesh Kumar Paliwal observed, "no prosecution witness can be called for examination/cross-examination merely because he/she filed affidavit contrary to his deposition made before the trial Court."

In the case at hand, the prosecutrix in her FIR and statement recorded under Section 161 and 164 of Cr.P.C. supported the prosecution case. She was fully examined and cross-examined before the trial court where also, she supported the story. However, later, after elapse of time, she filed an affidavit denying the incident. The accused then moved an application to recall the prosecutrix, which came to be rejected by the trial court. He then approached the High Court.

State argued that where witnesses have been examined and cross-examined fully, she cannot be recalled to resile from her earlier testimony given before the trial Court.

Upholding the trial court order, High Court was of the view that the prosecutrix had been "won over" by the accused. It said,

"an opportunity of fair trial has to be given to the accused but it should also be kept in mind that no party can be permitted to fill up the lacuna by moving an application that some questions could not be put to the prosecutrix in her crossexamination or after her deposition before the trial Court she has denied from the commission of incident."

Accordingly, the application was dismissed.

Case title: Rajkumar Ahirwar vs. The State of Madhya Pradesh

Citation: 2024 LiveLaw (MP) 199

Case No: MISC. CRIMINAL CASE No. 46462 of 2023

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