Calling of Prosecution Witness as defence witness

The judgment of the Supreme Court very clearly indicates that the provisions under Section 233, Cr.P.C. should not be permitted for the defence to move an application for calling upon a prosecution witness who has been examined and cross-examined at one point of time and later on has to be called as a defence witness to give entirely contradictory statement from what has already been given earlier as a prosecution witness. 14. If we peruse the provisions under Section 233, Cr.P.C., it clearly gives an indication that the said provision is to be attracted after the prosecution evidence is closed and that the Court has reached to the conclusion that prima facie, there is sufficient material against the accused persons for proceeding further with the case and at that time the accused persons can bring his defence witness and adduce any evidence in support of their defence. It further envisages that under Section 233, Cr.P.C. if the accused persons take for issuance of any process for compelling the attendance of any witness or production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. This itself clearly indicates that it is not a matter of right that the accused persons can initiate process for compelling any prosecution witnesses to be adduced as defence witness just to make a statement in contrast what they have earlier made. On the contrary, it refers to the fact that in a given facts and circumstances of the case the Court below can reject the request of the accused persons seeking for calling upon a person as a witness in case if there are justified reasons. 15. In the instant case, the justified reasons is explicit from the record itself that of the prosecutrix whom the defence intends to call as a defence witness has already been examined as a prosecution witness and has also been cross-examined elaborately by the defence and only because subsequently the prosecutrix has changed her mind and filed an affidavit, she cannot be permitted to be called as a defence witness in the same case. IN THE HIGH COURT OF CHHATTISGARH Criminal Revision No. 563 of 2016 Decided On: 05.07.2016 Gaurav Sonkar and Ors.V State of Chhattisgarh Hon'ble Judges/Coram: P. Sam Koshy, J. Citation: 2017 CRLJ253