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2004 DIGILAW 250 (KAR)

STATE OF KARNATAKA v. VENUGOPAL

2004-03-31

M.S.RAJENDRA PRASAD

body2004
M. S. RAJENDRA PRASAD, J. ( 1 ) THIS petition by the State is filed under Sections 397 sand 401 Cr. P. C. praying the Court for setting aside the order dated 18-5-2001 passed in S. C. No. 460/1991 on the file of the XXV Addl. Sessions Judge, Bangalore, wherein the learned sessions Judge had rejected the application filed by the State under Section 311 Cr. P. C. ( 2 ) THE Court has heard the arguments of Sri B. A. Belliappa, learned Government pleader on behalf of the petitioner-state, and sri C. H. Hanumantharaya, learned counsel on behalf of the respondents-accused. ( 3 ) THE learned Government Pleader strenuously contended that the material on record clearly shows that the order impugned is illegal and improper. The learned sessions Judge had not applied judicial mind and had not appreciated the facts in issue in the right perspective and the same has resulted in miscarriage of justice. He also contends that the prosecution should be provided lull opportunity to prove its case. Hence, he prayed for allowing the revision petition. ( 4 ) ON the contrary, the learned counsel for respondents strenuously contended that the material on record clearly shows that the order impugned is legal and proper. The learned Sessions Judge, after appreciating the facts in the right perspective, had arrived at the right conclusion. No grounds have been made out to allow the revision petition. Hence, the learned counsel prayed for dismissal of the revision petition. ( 5 ) THE Court has carefully perused the material on record and has given its anxious thoughts over the rival contentions raised. ( 6 ) FROM the material on record, it is seen that the accused have been facing prosecution for various offences including an offence under Section 304-B. I. P. C. and Sections 3 and 4 of the Dowry Prohibition Act. After closure of the case of the prosecution, the accused had been questioned in respect of incriminating material under Section 313 Cr. P. C. Thereafter, the accused had been called upon to enter defence. Accordingly, the accused have examined five witnesses in proof of the defence set up by them. At that stage, the State had filed the instant application under Section 311 Cr. P. C. Thereafter, the accused had been called upon to enter defence. Accordingly, the accused have examined five witnesses in proof of the defence set up by them. At that stage, the State had filed the instant application under Section 311 Cr. P. C. praying the Court for recalling P. W. 3 and also to summon the Videographer - K. M. Laxmana, and it has been specifically averred in the application that the prosecution intends to display the video casette and confront the same to D. Ws. with regard to their non-presence during engagement ceremony. ( 7 ) THE statutory provisions of Section 311 Cr. P. C. enable both the accused and the State to file application for recalling any witness already examined or to examine any witness afresh. Having regard to the statutory provisions, it is needless to say that the state and the accused are entitled to avail this provision to substantiate its stand in the case so far as the prosecution is concerned, in disproof of the guilt of the accused or to substantiate the stand taken by the accused, so far as the accused is concerned. ( 8 ) IT is an elementary principle of law that the burden of proof of guilt of an accused in criminal proceedings lies on the prosecution, prosecution, and prosecution only. In a criminal trial, the accused has been assigned a dormant role to play and it would suffice, if he is able to place some material either to improbablise or falsify the case of the prosecution. So far as the standard of degree of proof by the prosecution is concerned, the prosecution has to prove the guilt of the accused beyond reasonable and/or shadow of doubt. So far as the accused is concerned, if he is able to place some material by preponderance of probabilities to improbablise or falsify the case of the prosecution, it would meet the requirement of law. It is also settled principle of law that the prosecution cannot afford to lead in evidence in disproof of the stand taken by the accused. Having regard to the facts of the case and particularly in the light of the contents of paragraph-3 of the application, it has to be mentioned that the prosecution has made an attempt to disprove the case of the accused and in that process, the instant application has been filed. Having regard to the facts of the case and particularly in the light of the contents of paragraph-3 of the application, it has to be mentioned that the prosecution has made an attempt to disprove the case of the accused and in that process, the instant application has been filed. Even considering the application on merits, it is clear that the prosecution intends to confront the video film to D. Ws. already examined to show that they had not attended the engagement ceremony. It may not be out of context, if it is mentioned that there is likelihood of the videographer not covering all the people, who had been present at the ceremony. Just because their presence is not seen in the video film, it does not lead to an irresistible conclusion that D. Ws. did not attend the engagement ceremony at all. Moreover, with the advancement of science and technology, one cannot rule out the possibility of deleting the portion, which shows the presence of D. Ws. while editing. Even on this score, the application is devoid of merits. The statutory provisions of section 311 Cr. P. C. lay down that the Court may permit for examination of any witness afresh or to recall any witness already examined, if his evidence appears to be essential for just decision in the case. The material on record and the discussion supra clearly go to show that the prosecution had made an attempt to disprove the stand taken by the accused by seeking permission to recall P. W. 3 and to examine the videographer afresh. In view of the facts and circumstances of the case and the settled law in this regard, this Court is of the opinion that the evidence now sought to be placed on record is not essential for just decision in the case. The application also has to be held devoid of merits even on this score. In view of the settled principles of law, this court is of the considered opinion that the application cannot be allowed as the same would prejudice the accused and the said procedure and said exercise cannot be done as the same is alien to the basic canons of law. Though the trial Court had not considered the fact in issue in this perspective, had arrived at the right conclusion. Though the trial Court had not considered the fact in issue in this perspective, had arrived at the right conclusion. Hence, this Court holds that the order impugned is legal and proper and the revision petition is devoid of merits. ( 9 ) FOR the foregoing reasons, the revision petition is dismissed. The order irnpunged is maintained. The trial Court is directed to expedite the trial as the sessions case is pending since the year 1991. Petition dismissed. --- *** --- .