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2012 DIGILAW 897 (CAL)

N. Tarkeswar Rao v. Anjali Maity

2012-09-25

KANWALJIT SINGH AHLUWALIA

body2012
JUDGMENT Kanwaljit Singh Ahluwalia, J. 1. The present petition has been filed under section 401 read with section 482 of the Code of Criminal Procedure, 1973 praying that the order dated 6th September, 2012 passed by the Sessions Judge, Paschim Medinipur whereby he allowed the application filed by Anjali Maity, P.W.-11, widow opposite party, whose husband was murdered, to step into witness box as a recalled witness be set aside. Briefly stated that the petitioner is facing trial in Sessions Trial No. XXIV of July, 2006, corresponding to G.R. case No. 1154 of 1997. As per prosecution, the petitioner along with other accused was member of a Railway Contractor Association under the leadership of one Rambabu. Husband of P.W.-11, opposite party No. 1/Anjali Maity was also member of the Association. It is stated that husband of P.W.-11/opposite party No. 1 had an altercation with Rambabu and for said reason, he had formed his own Association called "Friends Enterprise". On several occasions husband of Anjali Maity was threatened and finally, he was murdered by the associates of Rambabu by causing fire arm injury. 2. Officer-in-Charge of Kharagpur Town Police Station submitted a charge-sheet under sections 302 /120B /34 IPC against the petitioner and other accused. 3. Prosecution had cited 29 witnesses. Till 6th September, 2012, 20 witnesses were examined. 4. P.W.-11, Anjali Maity, widow of the deceased appeared in the witness box on 15th January, 2010 and had not supported the prosecution case. 5. On 16th January, 2010, on the very next day, an application was prepared on behalf of the P.W.-11 and the same was submitted in the Court on 19th January, 2010. 6. In the application the widow stated that she was threatened by the accused not to depose against them. The accused had threatened her that in case, she disclosed true facts of the case to the Court, she will be liquidated along with her children. 7. The Trial Judge, considering the entire gamut of the case, had allowed the application and fixed 25th September, 2012 for re-examination of Anjali Maity, P.W. 11. 8. The order passed by the Trial Judge is assailed before this Court by Sri Rajdeep Majumder on following grounds: a) That application under section 311 Cr.P.C. could not be filed by the witness. Such application only could be submitted by the Public Prosecutor or the accused. 8. The order passed by the Trial Judge is assailed before this Court by Sri Rajdeep Majumder on following grounds: a) That application under section 311 Cr.P.C. could not be filed by the witness. Such application only could be submitted by the Public Prosecutor or the accused. b) That conduct of the witness is so bad that application should not have been allowed. It is submitted that the case was registered in the year 2009. At that stage, widow/opposite party No. 1 (in the year 2009) has lodged the G.D.E that she is being threatened by the accused. But thereafter till 2010 no other such report was made to the police. It is submitted that even after deposition in the Court, no report was submitted by the P.W.-11, Anjali Maity, widow of the deceased. c) That by allowing the application under section 311 Cr.P.C. Court has permitted the witness to fill up the lacunas and this could not be done by the Court as the same will cause prejudice to the accused. 9. I have given due considerations to the submissions raised before me. Section 311 Cr.P.C. vest power in the Court to recall or re-examine any witness if it appears to Court that is essential for the just decision of the case. This power in the Court is not qualified by any application filed by the parties to the litigation. The Court even suo motu can exercise this power and call any person to appear and step into witness box where it is expedient in the interest of justice. The Trial Judge who is conducting the trial is not only privy to the demeanour of the witness but has also formed over all view of the case. Therefore, discretion vested in the Trial Court cannot be disturbed by the Revisional Court. It is to be noticed that at very commencement of the trial the witness had reported to the police and a G.D. Entry was made to the effect that she is being threatened by the accused. Furthermore, this Court cannot become oblivious of the fact that the witness has stepped into witness box on 15th January, 2010. On the very next day i.e. 16th January, 2010 she had sworn an affidavit and submitted the application to the Court on 19th January, 2010. The very prompt conduct of the witness rule out consultations and deliberations. Furthermore, this Court cannot become oblivious of the fact that the witness has stepped into witness box on 15th January, 2010. On the very next day i.e. 16th January, 2010 she had sworn an affidavit and submitted the application to the Court on 19th January, 2010. The very prompt conduct of the witness rule out consultations and deliberations. Furthermore, free and fair trial is essential feature of criminal administration of justice system. Courts are always guided by maxim that no innocent should be convicted, at the same time no guilty should escape. Thus, re-examination of the witness will not cause any prejudice to the petitioner and it will not amount to filling up the lacuna especially when the accused are well within their rights to assail the deposition of the witness after she is re-examined on the grounds submitted before me. Whether the witness is a turn coat or she was really under threat is a matter of appreciation of evidence. Accused during cross-examination, when the witness is recalled can put their version that she has changed her earlier deposition because of mala fide reasons. At this stage, to foreclose the evidence of the witness will be travesty of justice. Hence, this Court will not cause interference especially on the ground that the discretion validly exercised should not be disturbed by the higher Court, simply because the higher Court has formulated another opinion. Until any perversity, illegality or irregularity is discernible, the Revisional Court will be hesitant to cause interference. The above said observations have been made to meet the arguments raised by counsel for the petitioner. Therefore, it is specifically observed that nothing said herein shall be construed as a final expression on the merits of the case and the Trial Court uninfluenced by the observations made in this order shall appreciate the testimony of the witness considering the arguments raised by the counsel for the petitioner.