Section 540 of CrPC cannot be invoked with the sole purpose of changing the effect of witness’s original statement: J&K HC

Jammu and Kashmir and Ladakh High Court

Jammu and Kashmir High Court: A Single Judge Bench of Sanjay Kumar Gupta J., allowed the Criminal Revision Petition and set aside the order passed by the Principal District and Sessions Judge, Jammu.

The petitioner had been falsely charged with committing offences under Sections 376, 452 and 323 of the RPC. After the charges had been filed, the date for recording the statement of the prosecutrix was set, after the same had been constantly delayed by the prosecution. In her statement under Section 164 of the CrPC, the prosecutrix categorically denied the charges and allegations made against the petitioner. Subsequently, the prosecution declared the prosecutrix to be a hostile witness. Even during the cross-examination by the Public Prosecutor, the prosecutrix denied the charges and allegations against the petitioner and stated that she had never met him before. An application under Section 540 of the CrPC was moved by the prosecutrix through the Public Prosecutor which was vehemently opposed by the petitioner.

The Court found that the prosecutrix had denied the contents of the seizure memos. The victim at the time of giving her statement was identified by the doctor and her husband, who she claims had forced and coerced her to give the statement, as well as threatened her against recanting the statement. The Court considered the application made by the Public Prosecutor under Section 540 of the CrPC, and stated that the most important consideration is just decision being provided by the court, and in order to do that, the essentiality of the person who is to be re-examined needs to be ascertained.

The Court cited the case of Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461, as the fact situation of the same was very similar to the present case. The Court stated that where the witness was re-examined for the sole purpose of changing the effect of the previous statement when no ambiguity is present, then such an application for re-examination of the witness cannot be allowed. Thus, the petition was allowed and the judgment of the Principal District and Sessions Judge was set aside. [Masoom Hussain Shah v. State,2018 SCC OnLine J&K 792, Order dated 03-11-2018]

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