HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition No.5809 of 2009 Dated : 24.08.2009 Between : Seelamreddy Ganesh ….. Petitioner a n d The State of A.P. ….. Respondent HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition No.5809 of 2009 ORDER: Heard Sri C.Padmanabha Reddy, learned senior counsel for the petitioner, and Sri A.Ramesh, learned counsel representing the learned Public Prosecutor, for the sole respondent. The petitioner filed Crl.M.P.No.670 of 2009 in Sessions Case No.126 of 2008 on the file of the Court of Session, Visakhapatnam, requesting to recall P.Ws.2 and 3 already examined during the trial. The petitioner, who is the sole accused in the Sessions Case, claimed that P.W.2 when questioned during his cross examination admitted that he stated before the Police that none were present in and around the place of incident and that Allu Nooka Raju and Allu Venkata were also not present in and around the scene of offence. But, it was recorded in his deposition that P.W.2 did not state before the Police about the presence of P.W.1 or anybody else at the scene, which is quite different from an admission of statement before the Police about there being none in and around scene of offence including Allu Nooka Raju and Allu Venkata. The petitioner further claimed that the omission and contradiction need to be accurately brought on record. Concerning P.W.3, the petitioner claimed that in his statement under Section 161 of the Code of Criminal Procedure also, P.W.3 stated that Allu Nooka Raju and Allu Venkata were not found at the place of the incident about which he was not cross examined due to inadvertence and therefore, this aspect has to be specifically put to P.W.3 during cross examination. The petition was stated to be opposed by the learned Public Prosecutor for the prosecution and the learned Judge passed an order dated 25.07.2009, extracting the relevant portion of the evidence of the witness (stated to be P.W.1 but must have been P.W.2 as the petitioner never made a request for recalling P.W.1). What was extracted was not exactly found in the depositions of P.Ws.1 and 2, the copies of which are filed by the petitioner along with the criminal petition. The learned Sessions Judge went on to conclude that P.W.2 was silent on this aspect and when a statement is not in the evidence, no contradiction is to be confronted to the witness. Insofar as the omission is concerned, the same has been already confronted to him and elicited and hence the learned Sessions Judge opined that there is no need to recall P.W.2. Concerning P.W.3, the learned Sessions Judge opined that P.W.3 did not state about the presence of P.W.1 or anybody else. Hence, the question of confrontation does not arise. Observing that the reasons attributed for recalling P.W.3 were vague, the learned Sessions Judge dismissed the application. The petitioner approached this Court contending that originally Allu Nooka Raju and Allu Venkata were alleged to have given an axe to the accused and instigated him to kill the deceased, which he did. But, those two persons were later deleted on the strength of the conclusions arrived at by the investigating officer. The petitioner further claimed that P.W.1 alone was the eye witness and for the reasons claimed by him in the petition, P.Ws.2 and 3 had to be recalled to elicit the truth vis-à-vis the statement of alleged witnesses recorded by the Police under Section 161 of the Code of Criminal Procedure as the same is permissible under Section 145 of the Indian Evidence Act and hence the petitioner desired the recall of P.Ws.2 and 3. Section 145 of the Indian Evidence Act enables cross- examination of a witness as to previous statements in writing or reduced into writing and relevant to matters in question and when it is intended to contradict the witness by the writing, his attention must be called to those parts of previous statement which are to be used for the purpose of contradicting him. The petitioner claims to have already cross examined P.W.2 on this aspect and his grievance was that admission of P.W.2 that he stated to the Police specifically that none were present in and around the place of incident and that Allu Nooka Raju and Allu Venkata were also not present in and around the scene of offence was not recorded as it was, but was recorded as if P.W.2 stated that he did not state before the Police about the presence of P.W.1 or anybody else at the scene. The purported statement of P.W.2 in this regard is conveyed with an altogether different emphasis. If the claims of the petitioner are true and if the petitioner seeks to recall P.W.2 again for cross examination for the purpose of putting that portion of the statement under Section 161 of the Code of Criminal Procedure specifically to P.W.2, the same cannot be considered to be not within the scope of Section 145 of the Indian Evidence Act. Similarly, if P.W.3 has specifically stated in his statement under Section 161 of the Code of Criminal Procedure that Allu Nooka Raju and Allu Venkata were not found at the place of the incident and this portion of the statement was not specifically put to P.W.3, who in his evidence of course did not specifically refer to this aspect, what he has observed at the scene at the time of the incident had to be put to him to elicit the truth within the scope of 145 of the Indian Evidence Act. An accused is presumed to be innocent till the contrary is proved entitling him to every opportunity to prove his innocence. Allu Nooka Raju and Allu Venkata, who were claimed in the First Information Report to be the persons who gave the weapons to accused and who instigated him to kill the deceased were later opined by the investigating officer to be not involved in the sequence of events and the accused alone was prosecuted for the offence punishable under Section 302 of the Indian Penal Code and therefore, every circumstance relating to the presence or absence of Allu Nooka Raju and Allu Venkata at or around the scene and at or around the time of the alleged offence becomes a very relevant and crucial aspect for the defence of the accused and permitting him to have a reasonable opportunity to recall P.Ws.2 and 3 will alone sub serve the interests of justice. The learned Public Prosecutor expressed before the Court of Session that the recall of P.Ws.2 and 3 is sought for different reasons than are apparently pleaded in the miscellaneous petition. To avoid any such deviation in the purpose for which P.Ws.2 and 3 are sought to be recalled and to prevent any misuse of the recall of P.Ws.2 and 3 for purposes other than disclosed, it can be made clear that the recall shall be only for the purposes specified in the miscellaneous petition and not for any other purposes. The questions in cross-examination have to be literally confined to the purposes claimed in the criminal petition only. Therefore, the order in Crl.M.P.No.670 of 2009 in S.C.No.126 of 2008 on the file of the Court of Session, Visakhapatnam, dated 25.07.2009 is set aside and the said miscellaneous petition is allowed. But, the recall of P.Ws.2 and 3 for the purpose of further cross-examination by the accused on payment of the batta and expenses for the said witnesses by the accused shall be strictly confined only to the purposes mentioned in the said miscellaneous petition. The criminal petition is ordered accordingly. ______________________ G.BHAVANI PRASAD, J 24th August, 2009 SUR