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2013 DIGILAW 2303 (RAJ)

Govind v. State of Rajasthan

2013-12-17

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant misc. petition has been preferred by the petitioner assailing the order dated 19.9.2013 passed by the learned Additional Sessions Judge, Women Atrocity Cases, Jodhpur Metropolitan in Sessions Case No. 19/2013 whereby the application filed by the prosecution for summoning the witnesses ASI Mana Ram and the Judicial Magistrate No. 2, Jodhpur Shri Akhilesh Kalyan was allowed. 2. Briefly stated the facts of the case are that the petitioner is facing trial for the offences under Sections 498A and 306 of the I.P.C. The case was registered in relation to the death of Smt. Vineeta, the petitioner's sister-in-law by burning. The deceased immolated herself and whilst being hospitalised, her Parcha Bayan was recorded by the ASI Mana Ram, who was posted at Police Station Pratap Nagar. The Investigating Officer Hanuman Singh PW-12 upon being examined in the Court, proved the statement as Ex.P-14. The dying declaration of the deceased Vineeta was also recorded by the Judicial Magistrate and the said dying declaration was proved by the Investigating Officer Hanuman Singh as Ex.P-15, It appears that Mana Ram as well as Akhilesh Kalyan, the Magistrate, who recorded the two statements were cited as prosecution witnesses but for reasons unknown, the learned Public Prosecutor appears to have given them up. 3. On realising the mistake, the learned Public Prosecutor in the Trial Court filed an application under Section 311 Cr.P.C. requesting the Trial Court to summon these witnesses for proper proof of the two dying declarations. The application was objected by the accused on the ground that the prosecution had been given 15 opportunities to lead evidence and thereafter, its evidence was closed. The accused had been examined under Section 313 of the Cr.P.C. and after hearing the arguments, the matter had been posted for judgment. It was thus, submitted before the Trial Court that there was no justification to summon these two witnesses for examination. It was also pleaded that the defence of the accused would be prejudiced by summoning these two witnesses at the belated stage of trial. 4. The learned Trial Court considered the arguments advanced by both the sides and recorded a finding (in para No. 8 of the judgment) that the examination of both these witnesses was essential for proving the dying declaration given by the deceased Vineeta and thus, their examination was essential for the just decision of the case. 4. The learned Trial Court considered the arguments advanced by both the sides and recorded a finding (in para No. 8 of the judgment) that the examination of both these witnesses was essential for proving the dying declaration given by the deceased Vineeta and thus, their examination was essential for the just decision of the case. Accordingly, the application filed by the prosecution was allowed. The accused has now approached this Court by way of the instant misc. petition assailing the order dated 19.9.2013. 5. Shri Ramesh Purohit and Shri M.S. Sheikh learned Counsels for the petitioner vehemently contended that the order dated 19.9.2013 is absolutely illegal and amounts to a gross abuse of the process of the Court. They contended that the defence of the accused will be prejudiced if these two witnesses are summoned to give evidence at the trial. They relied on the decision rendered by the Hon'ble Supreme Court in the case of Natasha Singh v. CBI (State), reported in 2013 AIR SCW 3554 and decision rendered by this Court in the case of Vinod Kumar Singh v. State of Rajasthan, reported in 2009(2) Cr.L.R. (Raj.) 978 in support of their contentions and urged that the powers under Section 311 of the Cr.P.C. cannot be exercised for filling up the lacunas in the prosecution evidence. 6. Heard and considered the arguments advanced at the bar. Perused the order impugned and the documents filed on record. 7. The contention advanced by the learned Counsel for the petitioner that the defence of the petitioner is likely to be prejudiced if these two witnesses are summoned to give evidence per se does not appear to be palpable. The two witnesses namely ASI Mana Ram and Judicial Magistrate Akhilesh Kalyan, who have been summoned in this case are the persons, who recorded the two dying declarations of the deceased. 8. Both two documents were a part of the challan papers and had already been proved formally though by Hanuman Singh PW-12 the Investigating Officer. The prime evidence required to prove the two dying declarations would be of none else than the persons who recorded the same. Thus, their evidence was absolutely essential to unfurl the truth and for a just decision of the case. Thus, no new fact is being attempted to be brought on record by the examination of these two witnesses. The prime evidence required to prove the two dying declarations would be of none else than the persons who recorded the same. Thus, their evidence was absolutely essential to unfurl the truth and for a just decision of the case. Thus, no new fact is being attempted to be brought on record by the examination of these two witnesses. The prosecution simply intends to substantiate the evidence already available on the record by examining these two witnesses, which cannot be held to be an attempt to fill up the lacuna left at the trial. 9. The Hon'ble Supreme Court examined this issue in the case of Rajendra Prasad v. Narcotic Cell through its Officer-in-Charge, Delhi, reported in AIR SC 2292 and held that a lacuna means a latent wedge in the story of the prosecution case, which could not be permitted to be filled up by resorting to the provisions of Section 311 Cr.P.C. 10. Even in the case of Natasha Singh (supra) on which, the learned Counsel for the petitioner heavily relies, the Hon'ble Supreme Court held as below: "7. Section 311 Cr.P.C. empowers the Court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under the Cr.P.C., or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the Cr.P.C. has conferred a very wide discretionary power upon the Court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the Court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The Court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the Court must satisfy itself that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. 14. The Court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the Court must satisfy itself that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. 14. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. Ah application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as 'any Court', 'at any stage', or 'or any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that the provisions of this Section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just-decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case." (Emphasis supplied) 11. There is thus no escape if the fresh evidence to be obtained is essential to the just-decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case." (Emphasis supplied) 11. The Hon'ble Supreme Court relied on the earlier decision in the case of Mohan Lal Shamji Soni v. Union of India, reported in AIR 1991 SC 1346 wherein whilst examining the scope of Section 311 Cr.P.C., the Hon'ble Supreme Court held that it is a cardinal rule of the law of evidence that the best available evidence must be brought before the Court to prove a fact or a point in issue. 12. In the case of Rajendra Prasad (supra), the Hon'ble Supreme Court observed as below: "Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. After all, function of the Criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better." (Emphasis supplied) 13. Thus, it was held that no party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. 14. In the case of Vinod Kumar Singh (supra), both these decisions i.e. the decision rendered by the Hon'ble Supreme Court in the case of Mohan Lal Shami Soni (supra) and Rajendra Prasad (supra) were not brought to the knowledge of the Court. 15. In the case at hand, the learned Trial Court has recorded an irrefutable satisfaction that the examination of the two witnesses is essential for unfurling the truth in the case and is necessary in the interest of justice. 15. In the case at hand, the learned Trial Court has recorded an irrefutable satisfaction that the examination of the two witnesses is essential for unfurling the truth in the case and is necessary in the interest of justice. In this view or the matter, this Court is of the opinion that the plea raised by the learned Counsels for the petitioner that the prosecution sought to fill in the lacuna by resorting to the application under Section 311 Cr.P.C. for summoning the witnesses viz. ASI Mana Ram and Judicial Magistrate Akhilesh Kalyan, on the face of the record, is untenable. This Court is of the view that the summoning of these two witnesses cannot be held to be of any disadvantage to the accused or aimed to cause an unfair advantage to the prosecution. The documents which these two witnesses have been summoned to prove were already a part of the record and were formally proved by PW-12 Hanuman Singh. However, in view of requirement of strict proof as per the Evidence Act, it was essential that the persons, who recorded the statements, should be examined at the trial so that the admissibility of the documents cannot be challenged. It goes without saying that the accused has to be provided an appropriate opportunity of rebuttal. The learned Trial Court is under an obligation to provide such an opportunity. 16. In view of the aforesaid discussion, this Court is of the opinion that the challenge made to the order dated 19.9.2013 passed by the learned Additional Sessions Judge, Women Atrocity Cases, Jodhpur Metropolitan by way of the instant misc. petition is not sustainable. 17. Accordingly, the misc. petition being devoid of any merit is hereby rejected. Stay petition is also rejected. *******