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2005 DIGILAW 573 (ORI)

Raghunath Mallick v. State of Orissa

2005-09-29

R.N.BISWAL

body2005
JUDGMENT R. N. BISWAL, J. : This CRLMC arises out of a petition filed under Section 482 of Cr.P.C. challenging the order-dated 16.12.2004 passed by the Addl. Sessions Judge, Bhadrak in S.T. No.16/34 of 1999 wherein he rejected the petition under Section 311 of Cr.P.C. and refused to recall P.Ws. 3,4,5 and 10 for further cross-examination. 2. Succinctly stated the fact leading to filing of this CRLMC is that the petitioners face trial for the offence under Sections 302/324/34 of I.P.C. in the aforesaid case on the alle¬gation that in furtherance of their common intention they volun¬tarily assaulted Subash Chandra Mallick with dangerous weapons leading to his death. At the stage of defence evidence on 23.11.2004, the accused-petitioners filed a petition with ques¬tionnaire appended thereto under Section 311 of Cr.P.C. to recall P.Ws. 3,4,5 and 10 for further cross-examination, on the ground that some material questions which were essential to be put to them for arriving at a just decision of the case were inadvert¬ently left out during cross-examination. After hearing counsel for the parties the learned Addl. Sessions Judge held that the witnesses were cross-examination by Mr. Bramhananda Panda, Sr. Counsel of Cuttack at length on all aspects. He also examined the evidence of the witnesses keeping in mind the questionnaire appended to the petition and held that further cross-examination of P.Ws. 3,4, 5 and 10 was not essential to arrive at a just decision of the case and that the petition was filed long after the examination of the aforesaid witnesses was over, just to delay the disposal of the case. Accordingly, he rejected the petition. Being aggrieved with the said order the petitioners have filed this CRLMC as mentioned earlier. 3. Learned counsel for the petitioners submitted that the trial Court rejected the petition erroneously without considering the questionnaire appended to it and the evidence of P.Ws. 3,4,5 and 10, on the sole ground that Mr. Bramhananda Panda, Sr. Coun¬sel of Cuttack cross-examined the witnesses, even though the questions sought to be put to the aforesaid witnesses were essen¬tial to the just decision of the case. Per contra, learned Addl. Standing counsel contended that the trial Court elaborately discussed the questionnaire and the evidence of the witnesses sought to be cross-examined before rejecting the petition.He did not reject it only on the ground that a Sr. counsel of Cuttack had cross-examined the witnesses. Per contra, learned Addl. Standing counsel contended that the trial Court elaborately discussed the questionnaire and the evidence of the witnesses sought to be cross-examined before rejecting the petition.He did not reject it only on the ground that a Sr. counsel of Cuttack had cross-examined the witnesses. He further contended that the petition under Section 311 of Cr.P.C. was filed at a belated stage only to delay the disposal of the case. Accordingly he pressed to dismiss the CRLMC. 4. As submitted by learned counsel for the petitioners cross-examination of P.Ws.3 and 4 was over on 8.8.2001 while those of P.Ws. 5 and 10 on 18.9.2001 and 21.8.2002 respectively. So there is delay of about two years and four months in filing the petition under Section 311 of Cr.P.C. Of course delay alone is not a ground to reject a petition under Section 311 of Cr.P.C. This Section reads as follows :- “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, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.” This Section consists of two parts. In the first part it is the discretion of the Court to examine or recall and re-examine any person already examined but in second part it is incumbent upon the Court to examine or recall and re-examine any person if his evidence appears to it to be essential to the just decision of the case. This exercise can be done at any stage of the pro¬ceeding. 5. Now it is to be seen whether re-examination of P.Ws. 3,4,5 and 10 is essential to the just decision of the case. It was confronted to P.W.3 during cross-examination that he had not stated before the I.O. that by focusing a torch light he could see the accused persons (petitioners) assaulting the deceased. So, the question whether or not torch light was seized by the I.O. or whether or not P.W.3 volunteered to hand over the said torch light to the I.O. is not essential to the just decision of the case. So, the question whether or not torch light was seized by the I.O. or whether or not P.W.3 volunteered to hand over the said torch light to the I.O. is not essential to the just decision of the case. In this examination in chief P.W.3 did not depose before the Court that he saw the occurrence through the electric light. In fact he has not deposed anything regarding electric light. So there is no reason to question him about the distance of the electric pole from the place of occurrence. He has stated that at the instance of accused-petitioner, Panchanan, G.R. Case No.204 of 1994 was registered against him wherein he got acquit¬ted. So, the question intended to be put to P.W. 3, with regard to the number of Criminal cases instituted against him at the instance of the accused is not essential. If in fact some other cases were registered against the said witness on the report any of the accused persons he could have been cross-examined on that point earlier. P.W.3 has deposed about the length of the fence. He has also deposed that the middle portion of it got damaged. Another witness has stated that the fence was made of bamboo twigs. So, the intended question about the nature of fence and the extend of damage caused to it is also not essential. As found from the evidence of P.W.4 while in police custody accused Raghu¬nath Mallick stated that he threw the Bhujali used by him and the Farsa used by accused Babaji in assaulting the deceased inside KANAKA DURGA MATHA POKHARI of Rameswarpur and led the police personnel and witnesses to the discovery of one of those weapons. The only questions intended to be put to P.W.4 by the defence was whether the said pond was accessible to general public and wheth¬er it was being used by the villagers for bathing purpose. Any answer either positive or negative to it is not essential for just decision of the case. Perused the evidence of P.Ws. 5 and 10 and the questionnaire intended to be put to them. Any answer to those questions would not be essential for just decision of the case. Moreover, P.W.10 being recalled by the defence was cross-examined on 20.3.2004. The defence could have cross-examined him in detail on that occasion, but it was not done. Perused the evidence of P.Ws. 5 and 10 and the questionnaire intended to be put to them. Any answer to those questions would not be essential for just decision of the case. Moreover, P.W.10 being recalled by the defence was cross-examined on 20.3.2004. The defence could have cross-examined him in detail on that occasion, but it was not done. The petition under Section 311 of Cr.P.C. was filed at a very belated stage as stated earlier. It appears that it was filed only to delay the disposal of the case. Therefore, under such circumstances the CRLMC stands dis¬missed. CRLMC dismissed.