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2007 DIGILAW 271 (JK)

Nivedata v. State

2007-12-11

VIRENDER SINGH

body2007
1. The petitioner herein is an eye witness to the main occurrence in which her real sister, Sarita, was shot dead by Vivek Rai, respondent No.2, an under trial prisoner. She was examined as one of the prosecution witness before trial Court on 21.07.2005 wherein she reiterated her earlier statement recorded under Section 161 Cr.P.C., on 28.11.2003 by the Investigating agency during the investigation of the present case. Subsequently, after more than 11/2 years of recording of her statement on oath, she moved an application under Section 540 Cr.P.C., (corresponding to Section 311 of new Code) making a prayer that she may be recalled for re-recording her statement as she wanted to make clean abreast of certain facts, which she could not say in her earlier statement. She asserted in that application that she was interrogated by the police on the date of occurrence and thereafter she was never examined during the investigation and the statement on oath made by her before the trial Court on 21.07.2005 was on account of torture and she was pressurized by the police to depose in the terms of her statement already recorded by the police under Section 161 Cr.P.C. She further averred that she was tortured to the extent that in case she did not depose in terms of her earlier statement recorded under Section 161 Cr.P.C., she would be involved in the case and under these circumstances she was constrained to make the statement as per the liking of the police on 21.07.2005. She subsequently realized that a sin was committed by her by falsely implicating the accused. 2. After putting the State and the accused to the notice, the learned trial Court while entering into detailed discussion has dismissed the said application vide impugned order dated 06.03.2007. Hence, this revision petition. 3. On notice, Mr. Salathia has put in appearance on behalf of respondent No. 1, whereas Mr. Sunil Sethi represents the accused (respondent No.2). 4. I have heard Mr. U. K. Jalali, learned Senior Advocate, assisted by Mr. Anil Khajuria, Advocate, for the petitioner; Mr. B. S. Salathia, Addl. Advocate General and Mr. Sunil Sethi, Advocate, for the respondents. 5. The conceded position is that the trial is at the stage of recording of statement of the accused under Section 342 Cr.P.C. (corresponding to Section 313 Cr.P.C. of new Code). Anil Khajuria, Advocate, for the petitioner; Mr. B. S. Salathia, Addl. Advocate General and Mr. Sunil Sethi, Advocate, for the respondents. 5. The conceded position is that the trial is at the stage of recording of statement of the accused under Section 342 Cr.P.C. (corresponding to Section 313 Cr.P.C. of new Code). Since the proceedings were already stayed by this Court while issuing notice, I have called for the trial Court records also. The next date now fixed before the Court below is 12.12.2007. 6. Mr. Jalali while taking the present case on academic side submits that Section 540 Cr.P.C. is in two parts. The first part deals with the discretionary power of the Court, whereas the second part imposes upon the Court an obligation of summoning or recalling or re-examining any witness. So far as first part is concerned, the Court can use its discretion at any stage during the trial till the judgment is pronounced, whereas according to second part, the need of recalling or summoning the witness would arise when the Court feels that the evidence of a particular witness is essential to the just decision of the case. To say so, Mr. Jalali relies upon a judgment rendered by the Honble Apex Court in case `Mohanlal Shamji Soni v. Union of India 1991 Supp (1) SCC 271B, in which the basic judgment rendered in case `Jamatraj Kewalji Govani v. State of Maharashtra AIR 1968 SC 178, was reiterated. 7. Adverting to the facts of the case, Mr. Jalali submits that, no doubt, the petitioner is the star witness of the prosecution in whose presence her sister, Sarita, (deceased) who was married to respondent No.2, was murdered, but during the surcharged atmosphere and because of the police torture she was made to give the statement as per the choice of the police on 21.07.2005. Subsequently when she realized that she had not given the true account of the occurrence before the trial Court, her conscious started pricking her and, therefore, she thought of telling the truth before the Court by moving the present application for her re-examination. Dwelling upon his arguments, Mr. Jalali further submitted that the said application stands declined by the trial Court primarily on the ground that prosecution witness cannot be re-summoned by either side to fill up the lacunae. This approach, according to Mr. Dwelling upon his arguments, Mr. Jalali further submitted that the said application stands declined by the trial Court primarily on the ground that prosecution witness cannot be re-summoned by either side to fill up the lacunae. This approach, according to Mr. Jalali, is not correct as the application is neither moved by the State nor by the accused. It was by the witness only and, therefore, it cannot be said that either side was filling up the lacunae. 8. Mr. Jalali then submits that the present application was moved by the petitioner knowing very well the consequences that she can even be held liable for perjury. Despite all this, she wants to make the entire position clear before the trial Court and not to remain as a silent spectator. Therefore, interest of justice rather demands that she should be recalled to depose once again so that truth comes to light and the technicalities should not stand in the way of substantive justice. 9. In support of his contentions, Mr. Jalali has relied upon a judgment of this Court rendered in `Raj Kumar v. State of J&K and ors 2004 (1) JKJ 285 (HC), in which this Court while relying upon three Judges decision of Honble Supreme Court rendered in case `Mohd. Hussain Umar Kochara etc. v. KS Dalip Singh Ji and anr. (AIR 1970 SC 45) allowed further re-examination of two witnesses on an application moved by the accused asserting that those witnesses had filed their affidavits staying that earlier they had made false statement under police pressure. According to Mr. Jalali, present case is rather on better footing on facts than that of aforesaid case, therefore, it calls for interference of this Court. 10. Mr. Jalali lastly submits that the learned trial Court has wrongly relied upon the judgment of Honble Apex Court rendered in case Yakub Ismailbhai Patel v. State of Gujarat AIR 2004 SC 4209, whereas the same on facts is not applicable to the facts of the present case. Even, otherwise, in this judgment there is no reference to `Mohd. Hussain Umar Kocharas case (supra), which is three Judges decision of Honble Supreme Court. 11. On the aforesaid submissions, Mr. Even, otherwise, in this judgment there is no reference to `Mohd. Hussain Umar Kocharas case (supra), which is three Judges decision of Honble Supreme Court. 11. On the aforesaid submissions, Mr. Jalali prays that the instant revision petition be allowed by setting aside the impugned order dated 06.03.2007 passed by learned trial Court with a further direction to it to allow the petitioner to appear as witness to make her further statement in this case. 12. Mr. Salathia while opposing the arguments advanced by Mr. Jalali, submits that allowing the prayer of the witness on the plea as projected herein would have adverse impact on criminal justice system and principally such type of applications should not be allowed. According to learned counsel, possibly there cannot be any objection from the side of respondent No.2 as there is no difficulty in understanding that the petitioner and the accused have now patched up the matter and she is going to depose in his favour by projecting a false plea that her earlier statement is pricking her conscious. According to Mr. Salathia, the judgment rendered in Yakub Ismailbhai Patels case (supra) and relied upon by the trial Court is applicable to the facts of the present case with all fours as in the aforesaid case the accused appellant during the trial managed to procure the affidavit of the main eye witness after he had deposed against him before the trial Judge and in the said affidavit, the witness had asserted that whatever was stated by him as a prosecution witness was not true and it was done at the instance of the police. The affidavit was rejected by the Sessions Court and the High Court, and the Honble Supreme Court upheld the view observing that once the witness is examined as a prosecution witness, he cannot be allowed to perjure himself by resiling from testimony given in the Court on an oath. According to Mr. Salathia, in the aforesaid judgment also, the Honble High Court had observed that during the intervening period the witness was in jail and the accused were his fellow inmates. In the present case also, the petitioner is none else but the sister-in-law (real sister of the deceased) of respondent No.2, and during this long interval he might have managed to depose in his favour. In the present case also, the petitioner is none else but the sister-in-law (real sister of the deceased) of respondent No.2, and during this long interval he might have managed to depose in his favour. Therefore, taking the case from any angle, justice demands the rejection of the instant petition and not acceptance. 13. In order to strengthen his arguments, Mr. Salathia relies upon a latest judgment of this Court rendered in `Hem Raj v. State 2006 (1) JKJ 68 (HC), in which the witnesses after being examined before the trial Court moved an application for their recalling on the ground that the deceased was killed by the militants and not by the accused facing trial. Their application was dismissed by the learned trial Court and against the said order the accused had filed the revision petition, which came to be dismissed by this Court. In the said judgment, this Court had followed the law laid down by the Apex Court in Yakub Ismailbhai Patel (supra). 14. Mr. Sethi while appearing for the accused submits that it is premature to say at this stage that the petitioner is going to depose in favour of the accused in the event of her recalling by the Court and, therefore, it cannot be said by any stretch of imagination that she has been managed to depose in favour of the accused. He, therefore, controverts Mr. Salathia on this issue. 15. Mr. Sethi then submits that in case the witness is allowed to make her further statement before the trial Court with regard to the occurrence, it does not mean that her earlier statement is just washed away; the State would still get an opportunity to cross-examine her in case she does not support the case of the prosecution; the Court can even act upon the statement of a hostile witness and, therefore, all the situations are still open before the Court and it cannot be just said that once the petitioner is re-examined, the case would end in acquittal of the accused. He then submits that in this case the accused should get an opportunity of fair trial and the justice should not go by fault. In case the petitioner steps into the witness box, she would be atleast in a position to satisfy her conscious irrespective of the fact as to what would be the fate of the trial. So virtually, Mr. In case the petitioner steps into the witness box, she would be atleast in a position to satisfy her conscious irrespective of the fact as to what would be the fate of the trial. So virtually, Mr. Sethi supports the cause of the petitioner. 16. Before I advert to the facts of the case, it would be most appropriate to reproduce para 9 of the judgment rendered in `Mohan Lal Shamji Soni v. Union of India and another 1991 Supp (1) SCC 271, (supra) cited by Mr. Jalali. It reads, thus:- "9. The very usage of the words such as `any court, `at any stage, or `of any enquiry, trial or other proceedings, `any person and `any such person clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow for any discretion but it binds and compels the court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case." 17. While dealing with the second part of Section 540 Cr.P.C., in more detail, their Lordships in para 16 of the judgment observed as under: - "16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any part to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision-either discretionary or mandatory-depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice. In this connection we would like to quote with approval the following views of Lumpkin, J. in Epps v. S., 19 Ga 118 (Am), which reads thus: "...it is not only the right but the duty of the presiding judge to call the attention of the witness to it, whether it makes for or against the prosecution; his aim being neither to punish the innocent nor screen the guilty, but to administer the law correctly... Counsel seek only for their clients success; but the judge must watch that justice triumphs." 18. Mr. Jalali, while relying upon the ratio rendered in Mohd. Hussain Umar Kocharas case (supra), has argued that in the case in hand, the situation is that the witness herself has moved an application asking for her recalling and was prepared to give the evidence, which no doubt, would be materially different from what she had stated earlier before the trial Court and, therefore, there was sufficient material before the Court to be satisfied for the purposes of allowing the application moved under Section 540 Cr.P.C, In this context, I would like to reproduce para 19 from the aforesaid judgment. The same reads, thus: - "19. As to the last question, we find that examination-in-chief of P.W. 50 Ali commenced on October 7, 1960 and was concluded on October 10, 1960. His cross-examination commenced on August 21, 1961 and was concluded on September 4, 1961. On March 6, 1962 and again on June 21, 1962 the defence applied for recalling Ali for cross-examination. The learned Magistrate rejected the two applications. According to the defence Ali was repentant and wanted to say that he had given false evidence. In our opinion, no ground was made out for recalling Ali. There was no affidavit from Ali nor was there any other material showing that his testimony was incorrect in any material particular. The Court has inherent power to recall a. witness if it is satisfied that he is prepared to give evidence which is materially different from what he had given at the trial. In this case there was no material upon which the Court could be so satisfied. The learned Magistrate rightly disallowed the prayer for recalling Ali." 19. Crux of the ratio of the aforesaid judgments is that the only test for exercising the jurisdiction under Section 540 Cr.P.C., is the exigency of the situation and fair play. In this case there was no material upon which the Court could be so satisfied. The learned Magistrate rightly disallowed the prayer for recalling Ali." 19. Crux of the ratio of the aforesaid judgments is that the only test for exercising the jurisdiction under Section 540 Cr.P.C., is the exigency of the situation and fair play. Legally, there is no limitation on the power of the Court arising from the stage to which the trial may have reached for examination of a particular witness under this Section, but the note of caution is that the examination of a particular witness should be for a just decision of the case. It is also well settled and accepted principle that a Court must discharge its statutory function whether discretionary or obligatory, according to law, in dispensing justice because the duty of a Court is not only to do justice but also to ensure that the justice is being done. 20. In the present case, the petitioner is the star witness to the occurrence. She was examined on oath before the trial Court on 21.07.2005. She was cross-examined at length by the defense counsel. Admittedly, the application under Section 540 Cr.P.C., was moved by her after the lapse of more than nineteen months and the plea taken now is that she was tutored to reiterate her earlier statement recorded by the prosecution agency under Section 161 Cr.P.C., and she made her earlier statement under the police pressure, therefore, now she wanted to speak the truth before the Court. On the face of it, the application moved by the petitioner appears to be an afterthought and that too with a motive. Had there been any threat to her from the police, she would have not kept silent for I long nineteen months. This delay by itself speaks volume of the fact that she has now been asked to give go-bye to her earlier statement. The plea taken that her conscious is pricking her all through to speak the truth is not at all appealing to the Court, which is an embodiment of reasoning and reasoning alone. 21. This delay by itself speaks volume of the fact that she has now been asked to give go-bye to her earlier statement. The plea taken that her conscious is pricking her all through to speak the truth is not at all appealing to the Court, which is an embodiment of reasoning and reasoning alone. 21. In `Mohan Lal Shamji Sonis case (supra), their Lordships have observed that the only condition prescribed for recalling and re-examination of any witness is that the evidence sought to be obtained must be essential to the just decision of the case and when any part of the proceedings points out the desirability of some evidence being taken, then the Court has to exercise its power under this provision-either discretionary or mandatory-depending upon the facts and circumstances of each case. On facts, the present case fails on that test. 22. The arguments advanced by Mr. Jalali and virtually supported by Mr. Sethi, appearing for the accused, that it is not known as to whether in her second chance, the witness would depose in favour of the accused or that the prosecution would be at liberty to cross-examine her once again, is not the issue before this Court. Even for the sake of argument, it is said that the witness has summed up the courage to have the rigours of prosecution for perjury by resiling from the earlier statement on oath that does not mean that she should be allowed to be re-examined by all means. This liverage does not stand everywhere and in every case and the obligation which is imposed upon the Court has to be discharged judiciously on individual facts. In the case in hand, I am of the considered view that no ground muchless convincing ground is made out for recalling the petitioner at all as the same would not be essential to the just decision of the case. 23. To be fair to Mr. Jalali, the judgment rendered in Mohd. Hussain Umar Kocharas case (supra) and the judgment rendered in Raj Kumars case (supra) are on their own facts and would not advance his case, which is on different footing, on facts. In the present case, not only the huge delay in moving the application for examination by a witness herself is being considered against her, but the pleas taken by her are also not appealing to the Court. In the present case, not only the huge delay in moving the application for examination by a witness herself is being considered against her, but the pleas taken by her are also not appealing to the Court. Her own conduct is staring at her and, therefore, rejection of the application moved by her is the only outcome. 24. For all what has been discussed hereinabove, the net result is that the instant revision petition is dismissed having no merit in it. 25. Since the trial Court records have been requisitioned for the decision of the instant petition and the next date fixed is 12.12.2007 (as stated by learned counsel for both the sides at the Bar), Registry is directed to remit the records to the trial Court (1st Additional Sessions Judge, Jammu) today itself by a Special Messenger, so that an effective date is fixed by the trial Judge for proceeding further with the trial without any further delay. He is also requested to expedite the trial as the accused is in custody since long.