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2011 DIGILAW 291 (MP)

Jitendra Goyal v. State of M. P.

2011-03-03

INDRANI DATTA

body2011
ORDER 1. With the consent of learned counsel for the parties, matter is heard finally. 2. Petitioner/complainant has filed this petition under section 482 of CrPC for setting aside order dated 11.2.2011 passed by Special Judge (Dacoity), Gwalior, whereby application filed by respondent No.2 under section 311 of CrPC for recalling witnesses Raju Gupta and Suresh whose statements have been recorded in his absence and for calling Savant Singh as prosecution witness, has been allowed. 3. Facts in nutshell giving rise to this petition are that on the report of petitioner/complainant Crime No. 106/2005 has been registerd against respondent No.2 and others at police Station, Inderganj, Gwalior, under section 302 of IPC and respondent No.2 is facing trial before Special Judge, Gwalior. When charge-sheet was filed, at that time, respondent No.2 was absconding and case was tried against co-accused and respondent No.2 appeared before learned trial Court after wards. When the case was fixed for defence evidence, one application was filed on 3.2.2011 by respondent No.2 before trial Court on the ground that prosecution witnesses Raju Gupta and Suresh have been examined in his absence, hence, they are to be recalled and one witness Savant Singh, who has not been examined by prosecution, is to be examined as a prosecution witness. That application has been allowed by trial Court giving rise to this petition. 4. It is contended by learned counsel on behalf of the petitioner that statements of witnesses Raju Gupta and Suresh have been recorded before trial Court in Spl. Sessions trial No. 57/2005 on 8.2.2006 and respondent No. 2/accused is facing trial since 2006-2007. Application under section 311 of CrPC could have been filed earlier at the time when charge was levelled against him, but no such application has been submitted before 3.2.2011. Respondent No; 2 and other accused are prolonging the trial on various grounds. It is further submitted that witness Raju Gupta has not stated anything against respondent No. 2/accused or any of the co-accused and another witness Suresh has been declared hostile by the prosecution and he has not uttered anything against any accused persons. Hence, no ground is made out for recalling these witnesses. It is further submitted that at the time when respondent No.2 and other co-accused were examined under section 313 of CrPC trial Court has not put a single question concerning statement of these two witnesses, Raju Gupta and Suresh. Hence, no ground is made out for recalling these witnesses. It is further submitted that at the time when respondent No.2 and other co-accused were examined under section 313 of CrPC trial Court has not put a single question concerning statement of these two witnesses, Raju Gupta and Suresh. It is apparent that trial Court has not considered their evidence, therefore, no question has been put at the time of examination of respondent No. 2/accused under section 313 of CrPC. It is further submitted that in the FIR these witnesses Raju Gupta and Suresh as well as Savant Singh have not been named as eye-witnesses of the incident. It is further submitted that Savant Singh whose statement has not been recorded by prosecution and who is given up by prosecution can be examined as defence witness by respondent No. 2/accused. So there is no need to call him as a prosecution witness, as his evidence is not essential for proper disposal of the case. On these grounds, prayed to set aside the order of learned trial Court. 5. Learned Public Prosecutor for respondent No.1/State supported the contentions of learned counsel for the petitioner/complainant and submitted that as the alleged witnesses have not stated anything against respondent No.2/accused, there is no need to recall them. 6. Combating the claim of petitioner, learned counsel for respondent No.2/accused vehemently argued that as per the provisions of section 273 of CrPC, except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused or when his personal attendence is dispensed with, in the presence of his pleader. It is further submitted that under this provision accused is entitled to cross-examine the witness whose statement has been recorded by prosecution in his absence. It is further submitted that the fact that a witness has not uttered anything against the accused, cannot curtail his right to call the witness for cross-examination. It is further submitted that complainant has no locus standi to take objection for recalling the witnesses. It is further submitted that order of learned trial Court is proper, legal and sustainable in law and no ground is made out to set aside that order. 7. Learned counsel for respondent No.2 placed reliance on State of Madhya Pradesh v. Budhram, 1996 JLJ 80 = 1996 CrLJ 46 . It is further submitted that order of learned trial Court is proper, legal and sustainable in law and no ground is made out to set aside that order. 7. Learned counsel for respondent No.2 placed reliance on State of Madhya Pradesh v. Budhram, 1996 JLJ 80 = 1996 CrLJ 46 . In that case, evidence of witnesses were recorded in absence of accused and no request was made for dispensing with attendance of accused. This is held to be in violation of section 273 of CrPC and case was remanded back for retrial to Sessions Court. In the case of Smt. Urmila Sahu v. State of Orissa, 1998 CrLJ 1372 , evidence was recorded in the trial of co-accused. It is held that such evidence cannot be used against absconding accused in subsequent trial. In Bat Kishan v. State of Rajasthan, 1998 Cr.LJ 2425, it is held that sections 273 and 244 of the Criminal Procedure Code lay down the general principle that the evidence on which the prosecution proposes to rely for the purpose of framing of charge as well as for recording a conviction must be recorded in presence of the accused person after he has appeared in Court and in exceptional circumstances only the evidence recorded elsewhere or in some other mode may be permitted to be used against the accused if expressly provided by the Code. Same analogy has been laid down in Gavisiddiah v. The State ofKarnataka, 1975 CriLJ 285. 8. Relying on these citations, it is contended by learned counsel for respondent No.2 that respondent No.2/accused has a right to recall the witnesses for cross-examination as the statements of these witnesses have been recorded in his absence whether they have supported the prosecution case or not. Hence, no ground is made out for setting aside the order of learned trial Court and the petition deserves to be dismissed. 9. Heard rival contentions of learned counsel for the parties and perused the documents on record. Section 273 of CrPC reads as under :- "273. Evidence to he taken in presence of accused -- Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader." 10. Section 273 of CrPC reads as under :- "273. Evidence to he taken in presence of accused -- Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader." 10. On a bare reading of section 273 of CrPC, it reveals that all evidence against a accused should be tendered before the Court in his presence. So, as a general rule, a man should have the opportunity of hearing the evidence against him before he is called upon to explain that evidence. It is also an admitted fact that evidence recorded in the trial of co-accused cannot be utilized in the trial of absconding accused who subsequently appeared before the Court and is facing trial before that Court and that evidence whatever may be cannot be accepted against absconding accused. So far as recalling of witnesses Raju Gupta and Suresh are concerned, it is an admitted fact that their evidence is recorded in absence of respondent No.2. Hence, they are to be recalled and opportunity of cross-examining them is to be given to respondent No.2. Prosecution is directed to ensure the presence of these witnesses and try to conclude their examination within a period of one and half month from the date of receipt of the copy of the order. So far as calling Savant Singh as a prosecution witness is concerned, this witness is alleged to have been given up by the prosecution, therefore, he can be examined as defence witness if respondent No.2/accused so desires. As the trial is pending since 2005, trial Court is directed to expedite the trial. 11. With the aforesaid direction, this petition is disposed of.