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2004 DIGILAW 277 (PNJ)

Jitender v. State Of Haryana

2004-03-09

K.S.GAREWAL

body2004
Judgment 1. Jitender Singh has filed this petition under Section 482, Cr P. C. for seeking quashment of orders dated September 11, 2003 and February 10, 2004 passed by learned Additional Sessions Judge, Sonepat whereby the learned Judge has dismissed two applications that had been filed by the accused under Section 311, Cr. P. C. for recalling witnesses. 2. According to the learned counsel for the petitioner, Jitender along with Anil, Ishwar and Bhupender were facing trial under Section 302/34 of the Indian Penal Code and Section 25 of the Arms Act on the basis of F.I.R. No. 4 dated January 6, 2002 registered at Police Station Ganaur for the numberof Randhir. At the trial prosecution had examined Suresh Kumar (PW-3), Daya Nand (PW-4) as eye-witnesses and Jagdev Singh (PW-9) as a witness who had been present when Jltender and Anil were interrogated by the Investigating Officer and had made certain disclosure statement which led to the recovery of a pistol and cartridges. 3. After the prosecution witnesses had been examined, prosecution evidence was closed, statements of the accused recorded under Section 313, Cr. P. C. and the stage for recording defence evidence had been reached, Jitender petitioner moved an application on August 9, 2003 under Section 311, Cr. P. C. for the recall of Suresh Kumar (PW-3), Daya Nand (PW-4) and Jagdev Singh (PW-9) under Section 311, Cr. P. C. This application was also dismissed vide order dated September 11, 2003. 4. According to the learned counsel for the petitioner, affidavit of Suresh Kumar (PW-3) Annexure P-5, was to the effect that on January 6, 2002 at about 5.30 p.m. some persons had murdered his brother Randhir by firing shot at him. There were number of persons at the spot and it was also slightly dark and he could not definitely say as to who had fired the shot. Reliance was also placed on affidavit of Daya Nand (PW-4) which is Annexure P-6 and is to the similar effect. Lastly reliance was placed on affidavit of Jagdev Singh (PW-9) which is Annexure P-7 to the effect that no pistol had been recovered from the possession of the accused and that he had signed on blank leaves of paper. 5. Reliance was also placed on affidavit of Daya Nand (PW-4) which is Annexure P-6 and is to the similar effect. Lastly reliance was placed on affidavit of Jagdev Singh (PW-9) which is Annexure P-7 to the effect that no pistol had been recovered from the possession of the accused and that he had signed on blank leaves of paper. 5. The trial Court had considered the contentions of the accused-petitioner and also referred to the law on the point and concluded that the request of the accused for recalling the witnesses was not genuine. Earlier an application had been decided but the accused did not rest content and filed a second application without any fresh ground. For this reason the trial Court felt that it had no power to review its previous order dismissing a similar application. Application to recall the witnesses for further cross-examination was dismissed. 6. One cannot help recording that the course of action adopted by the accused in filing applications for recall of witnesses after the defence had obtained affidavits from the witnesses in their favour is an audacious exercise of rights granted to the accused. In criminal trials nothing is done behind the back of the accused. Accused are provided all the documents on which the prosecution proposes to rely, including copies of the statements of the witnesses. After charge is framed, prosecution leads evidence in open Court. Accused are provided defence counsel, if they are unable to engage a counsel for want of means. Every effort is made to give the accused a fair trial. 7. Therefore, when the defence presented applications before the trial Court attaching affidavits of witnesses to the effect that they saw nothing and their statements before the trial Court were false, it would not require much common sense to deduce that the defence or persons acting on behalf of the accused had contacted the witnesses, give them some allurement and obtained affidavits to be used to recall them and thereby scuttle the entire prosecution evidence. It is this cynical and perverse methodology adopted by the accused that should be cause of great worry for trial Courts. It is this cynical and perverse methodology adopted by the accused that should be cause of great worry for trial Courts. The petitioner has, in para 4 of the petition, pleaded that the affidavits of the witnesses "clearly spelt the death knell to the case of the prosecution." Prosecution case must never be permitted to be knocked out in the manner that the petitioners have tried to do. To encourage the defence to contact witnesses after their statements had been recorded and to file affidavits of the witnesses to strike the "death knell to the prosecution" would make a mockery of the process of the trial and lead to loss of faith in the criminal Justice system. 8. There is no merit whatsoever in this petition. The same is hereby dismissed. 9. A copy of the order be sent to the trial Court.