TMI Blog2013 (7) TMI 1178X X X X Extracts X X X X X X X X Extracts X X X X ..... ion he turned hostile under coercion and threat meted out to him at the instance of the Appellant and other accused. It was quite apparent that the complaint, which emanated at the instance of the Appellant based on the subsequent incident, which resulted in the registration of the FIR, seem to have weighed with the second Respondent to come forward with the present application u/s 311 Crpc, by way of an afterthought. If really there was a threat to his life at the instance of the Appellant and the other accused, as rightly noted by the Court below, it was not known as to why there was no immediate reference to such coercion and undue influence meted out against him at the instance of the Appellant, when he had every opportunity to mention the same to the learned trial Judge or to the police officers or to any prosecution agency. - Criminal Appeal No. 830 of 2013 (Arising out of SLP (Crl.) No. 2400 of 2011) - - - Dated:- 4-7-2013 - T.S. Thakur and F.M. Ibrahim Kalifulla, JJ. For Appellant: Mohit Kumar Shah, Adv. For Respondents: Gopal Singh, Anant Sharma and Amlan Kumar Ghosh, Advs. JUGMENT F.M. Ibrahim Kalifulla, J. 1. Leave granted. 2. This appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated in his evidence that he accidently fell into the hole of the latrine, while looking into it and that some instrument, which was lying inside the hole, caused the injury on his body. As far as the evidence of PW-4 and PW-5, namely, his sons, Babloo and Munna Kumar was concerned, the 2nd Respondent (PW9) stated that they were not present at the place of occurrence, since Babloo was staying in a hospital at Hulasganj and Munna Kumar was at Ranchi. The evidence of the prosecution was closed on 4.4.2007 and thereafter, the evidence of the defense side stated to have commenced. 8. In the meantime, it is stated that yet another altercation took place as between, the 2nd Respondent (PW9), his son Babloo on the one side and the Appellant and his father on the other side, regarding the flowing of water from the latrine, constructed by the 2nd Respondent into the field of the father of the Appellant. 9. Pursuant to the said issue, it is stated that the father of the Appellant was beaten with bamboo sticks, injuring him seriously. In connection with the said incident, Bindeshwar Yadav filed a complaint before the police on 7.6.2007, leading to the registration of the FIR on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed before the Court, which fully supported the case of the Appellant. 12. As against the above submissions, learned Counsel for the Respondents contended that as enormous powers are vested in the Court under Section 311 Code of Criminal Procedure, in the matter of examination or re-examination of a witness in order to arrive at a just conclusion and the High Court having exercised its powers in pursuance of the said power, the order of the High Court does not call for interference. 13. Having heard the learned Counsel for the respective parties and having bestowed our serious consideration to the issue involved, we find force in the submission of the counsel for the Appellant, as the same merits acceptance. In order to appreciate the stand of the Appellant it will be worthwhile to refer to Section 311 Code of Criminal Procedure, as well as Section 138 of the Evidence Act. The same are extracted hereunder: Section 311, Code of Criminal Procedure 311. Power to summon material witness, or examine person present: Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution. 15. In this context, we also wish to make a reference to certain decisions ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n paragraph 9: 9. We may observe that the power of the court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the five-Judge Bench in A.R. Antulay case nor in Kartar Singh case such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the court to be essential to the just decision of the case it is the duty of the court to summon and examine or recall and re-examine any such person. (Emphasis added) 18. In U.T. Of Dadra and Nagar Haveli and Anr. v. Fatehsinh Mohansinh Chauhan 2006 (7) SCC 529, the decision has been further elucidated as under in paragraph 15: 15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 Code of Criminal Procedure should be resorted to only with the object of finding out the truth or obtaining proper pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar (2000) 10 SCC 430. The following passage is in this regard apposite: In such circumstances, if the new counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible. 6. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined-in-chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial or other proceedings', 'any person' and 'any such person' clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should, therefore, be whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case. 15. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y imposes a duty on the Court to determine the truth and to render a just decision. i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25. With that view, when we examine the basic facts, we find them as noted by the learned trial udge being indisputably contrary to the complaint preferred by the second Respondent on 8.7.1999, in the police station in case No. 71/1999, wherein offences under Section 324/307/34 Indian Penal Code were reported alongwith Section 27 of the Arms Act. Based on the report of the doctor, the chargesheet came to be filed bearing No. 127/99, dated 31.10.1999, under Sections 324/307/34 Indian Penal Code and no charge under Section 27 of the Arms Ac was laid. The said case was put to trial and parties were participating. In the course of the trial, the turn of examination of PW-9, the second Respondent came on 16.3.2007, nearly after eight years from the date of occurrence. Second Respondent made a categorical statement in his evidence that he never made any statement to the police nor was he beaten on the date of occurrence, nor was he hit by any bullet shot. Further he made a clear statement that the injury sustained by him was due to the fall into the hole dug for constructing a latrine, where some instruments caused the injury sustained by him. He also made a categorical statement that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W-9) on 16.03.2007 the Court of Addl. Sessions Judge, F.T.C.-5 closed the evidence of prosecution on 04.04.2007 after giving opportunity to the learned Addl. P.P. To produce the remaining witness on 26.03.2007 and 04.04.2007 which he could not do on the ground that the time limited by the Hon'ble Court has expired. The Lordships of Supreme Court have held in Dohiyabhai v. State AIR 1964 SC 1563 that Right to re-examine a witness arises only after the conclusion of cross examination and Section 138 says it shall be directed to the explanation of any part of his evidence given during cross examination which is capable of being construed unfavourably too his own side. The object is to give an opportunity to reconcile the discrepancies if any between the statements in examination in chief and cross examination or to explain any statement inadvertently made in cross examination or to remove any ambiguity in the deposition or suspicion cast on the evidence by cross examination. Where there is no ambiguity or where there is nothing to explain, question put in re-examination with the sole object of giving a change to the witness to unto the effect of the previous statement should not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to such coercion and undue influence meted out against him at the instance of the Appellant, when he had every opportunity to mention the same to the learned trial Judge or to the police officers or to any prosecution agency. Such an indifferent stance and silence maintained by the second Respondent herein and the categorical statement made before the Court below in his evidence as appreciated by the Court below was in the proper perspective, while rejecting the application of the Respondents filed under Section 311 Code of Criminal Procedure In our considered opinion, the trial Court, had the opportunity to observe the demeanour of the second Respondent, while tendering evidence which persuaded the trial Court to reach the said conclusion and that deserves more credence while examining the correctness of the said order passed by the trial Court. 30. In the light of the above conclusion, applying the various principles set out above, we are convinced that the order of the trial Court impugned before the High Court did not call for any interference in any event behind the back of the Appellant herein. The appeal, therefore, succeeds. The order impugned dated 9.12.2010, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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