Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1128 (HP)

Deepak Kumar v. State of Himachal Pradesh

2014-08-23

SANJAY KAROL

body2014
JUDGMENT Sanjay Karol, J. 1. Petitioner Deepak Kumar is facing trial, in relation to the charged offences, punishable under the provisions of Sections 147 of the Indian Penal Code and 302, 341, 506-II read with Section 149 of the Indian Penal Code. Allegedly, on 2.7.2012, petitioner alongwith his co-accused murdered Surjit Singh, in relation to which FIR No. 47, dated 3.7.2012, registered at Police Station Bhaba Nagar/Nichar, District Kinnaur. 2. Record reveals that charges were framed on 4.5.2013 and between 4.7.2013 and 21.1.2014, statements of 23 prosecution witnesses were recorded on different dates. During trial, on 20.1.2014, petitioner moved an application (Annexure P-2), praying for recall of material witnesses Shyam Whether reporters of the local papers may be allowed to see the judgment? Singh (PW-16), Bahardeen (PW-18) & Sanjay Kumar (PW-19), for re-examination. Prosecution resisted the application. 3. Vide impugned order dated 2.5.2014, trial Court dismissed the same, which stands assailed in this petition, filed under the provisions of Section 482 of the Code of Criminal Procedure. 4. For proper determination of the issue in question, reproduction of contents of the application, in to would be fruitful. It reads thus:- "(1) That the case is fixed for examination of remaining prosecution witness/witnesses. (2) That the accused Deepak is alleged to be at crime scene s per the PW 16, 18 and 19 but he is not resident of this place/village where the alleged incident took place. (3) That secondly the above prosecution witnesses has made different statements from their recorded statements and they have resiled from the previous statement but interestingly they had not been declared hostile as per law. This has resulted into the fact that core questions has not been put to them inadvertently. (4) That the applicant seek to recall the PW. 16, 18, 19 to put them specific questions about the fact of identification, presence and role of Deepak in the alleged crime. The motive of alleged crime and actual defense of the accused has remained to be put to the witnesses. (5) That the prosecution witnesses has concealed the real facts from the Ld. Court during their cross examination. The mystery about a particular time of the evening of the alleged crime has remained a mystery. The presence of immediate office and residence of Patwari and residents of adjoining houses has remained un-asked to these witnesses. (5) That the prosecution witnesses has concealed the real facts from the Ld. Court during their cross examination. The mystery about a particular time of the evening of the alleged crime has remained a mystery. The presence of immediate office and residence of Patwari and residents of adjoining houses has remained un-asked to these witnesses. (6) That going by the seriousness of the offence/allegations the witnesses are sought to be recalled as not putting the core questions to these witnesses shall prejudice the case of the applicant/accused. (7) That recall and cross-examination of the applicant is essential for just decision of the case. It shall promote the cause of justice and shall provide applicant reasonable opportunity to defend his case. (8) That the principles of fair trail and opportunities also call for recall of the PW 16, 18 and 19 as they have projected themselves as eye witnesses. Admittedly Investigation agency has roped in only highly interested witnesses irrespective of the fact that they will support their sides to the hilt. So absence of independent witnesses also needs a detailed cross examination of the above witnesses by the applicant, who feel himself to be scapegoat. It is therefore, prayed that the application may kindly be allowed and the PW 16, 18, 19 may kindly be recalled for putting them specific questions as above referred, in the larger interests of justice and fair trial of the case." 5. Prosecution resisted the same, inter alia, on the ground that there is neither any ambiguity in the testimony of the witnesses nor has there been procedural lapse, entitling the petitioner for the relief claimed for. Also, petitioner is trying to fill in the lacuna, if any, and also delay the trial. 6. Significantly, before the Court below, during the hearing of the application, all pleaded grounds were given up and only change of counsel was the reason assigned, seeking recall of witnesses already examined at length. Trial Court rightly rejected such contention, holding change of counsel, per se, to be not a valid ground necessitating recall of the prosecution witnesses for further cross-examination. As allowing such plea would only delay trial and no prejudice being caused to the petitioner herein. 7. Section 311 of the Code of Criminal Procedure, reads as under:- "311. Power to summon material witness, or examine person present. As allowing such plea would only delay trial and no prejudice being caused to the petitioner herein. 7. Section 311 of the Code of Criminal Procedure, reads as under:- "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." It be observed that under the earlier Criminal Procedure Code, 1898, the said Section was 540. 8. Ambit and scope of powers to be exercised by the Magistrate under the said provisions are now well settled. Relying upon its earlier decisions rendered in Ratilal Bhanji Mithani vs. State of Maharashtra and other, (1971) 1 SCC 523 and Jamatraj Kewalji Govani vs. State of Maharashtra, AIR 1968 SC 178 , the apex Court in Mohanlal Shamji Soni vs. Union of India and another, 1991 Supp (1) SCC 271, held that criminal Court has ample power to summon any person or recall for reexamination any such person, even if evidence on both sides is closed. However, jurisdiction of the Court must obviously be dictated by exigency of the situation. Fair play and good sense appears to be the only safe guides and only when requirements of justice so command, re-examination of any person would be warranted depending upon facts and circumstances of each case. While deciding the matter, the Court also observed:- "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. Though any party 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 vs. 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 client's success but the judge must watch that justice triumphs." 9. The apex Court in Raj Deo Sharma (II) vs. State of Bihar, (1999) 7 SCC 604 , has further held as under:- "9 We may observe that the power of the Court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the Seven-Judge Bench in A.R. Antulay's Case, 1992 AIR SCW 1872 : AIR 1992 SC 1701 : (1992 Cri LJ 2717) nor in Kartar Singh's Case (1994 Cri LJ 3139), such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the Court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the Court to be essential to the just decision of the case it is the duty of the Court to summon and examine or recall and reexamine any such person." Interestingly, in this case all Hon’ble Judges delivered their separate judgments and Hon’ble Mr. Justice M. Srinivasan concurred with the view of Hon’ble Mr. Justice K.T. Thomas, whereas Hon’ble Mr. Justice M.B. Shah gave verdict of dissent. 10. The apex Court in Rajendra Prasad vs. Narcotic Cell, (1999) 6 SCC 110 , while trying to explain the meaning of expression lacuna, has held that lacuna in the prosecution case must be understood as the an inherent weakness or a latent wedge in the matrix of prosecution case. Advantage of it should normally to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. Advantage of it should normally to the accused in the trial of the case, but an oversight 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. 11. Apex Court in U.T. of Dadra & Nagar Haveli and another vs. Fatehsinh Mohansinh Chauhan, (2006) 7 SCC 529 , reiterated its views as under:- 13. In Mohanlal Shamji Soni vs. Union of India & another, AIR 1991 SC 1346 it was observed that:- It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. It is the duty of a Court not only to do justice but also to ensure that justice is being done. It was further held that 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. It was emphasized that power is circumscribed by the principle that underlines Section 311 Cr. P.C. namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Further, that the power must be used judicially and not capriciously or arbitrarily. It was emphasized that power is circumscribed by the principle that underlines Section 311 Cr. P.C. namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Further, that the power must be used judicially and not capriciously or arbitrarily. It was further observed that evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties and the discretion of the Court must obviously be dictated by exigency of the situation and fair play and good sense appear to be the safe guides and that only the requirement of justice command the examination of any person which would depend on the facts and circumstances of each case. Rajendra Prasad vs. Narcotic Cell, (1999) 6 SCC 110 is a decision where the contention that the prosecution should not be permitted to fill in lacuna was examined having regard to the peculiar facts where the exercise of power under Section 311 Cr. P.C. second time was challenged and, therefore, it is necessary to notice the facts of the case in brief. The accused along with some other persons was facing trial for offences under Sections 21, 25 and 29 of the NDPS Act. The prosecution and the defence closed their evidence on 19.9.1997 and the case was posted for further steps and on 7.3.1998, after few more dates, at the instance of the prosecution two witnesses who had already been examined were re-examined for the purpose of proving certain documents for prosecution. After they had been examined and the evidence had been closed, the case was posted for hearing arguments, which was heard in piecemeal on different dates. Subsequently on 7.6.1998, the Public Prosecutor moved an application seeking permission to examine Dalip Singh, S.I. and two other persons. Though the application was strongly opposed by the counsel for the accused, the trial Court allowed the same in exercise of its power under Section 311 Cr. P.C. and summons were issued to the witnesses. The challenge raised to the order of the learned Sessions Judge by filing a revision was dismissed by the High Court. In appeal before this Court it was contended that in the garb of exercise of power under Section 311 Cr. P.C. and summons were issued to the witnesses. The challenge raised to the order of the learned Sessions Judge by filing a revision was dismissed by the High Court. In appeal before this Court it was contended that in the garb of exercise of power under Section 311 Cr. P.C. a Court cannot allow the prosecution to re-examine prosecution witnesses in order to fill up lacana in the case specially having regard to the fact that Dalip Singh witness was never tendered by the prosecution for cross-examination and PW.4 Suresh Chand Sharma had also not been cross-examined by the State. Repelling the contention raised on behalf of the accused it was held:- "7. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the court could not fill the lacuna in the prosecution case. A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage to err is human is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up. 9. 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 oversight 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. 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." Also See – J. Jayalalithaa and other vs. State of Karnataka and other, (2014) 2 SCC 401; Natasha Singh vs. Central Bureau of Investigation (State), (2013) 5 SCC 741 ; P. Sanjeeva Rao vs. State of Andhra Pradesh, (2012) 7 SCC 56 and Hanuman Ram vs. State of Rajasthan and other, (2008) 15 SCC 652 . 12. Witnesses sought to be recalled reside in the State of Jammu and Kashmir. Perusal of their testimonies would only reveal that on material facts, they stand extensively cross-examined by the learned counsel appearing on behalf of the accused persons, including the present petitioner Deepak Kumar. 13. Record reveals that petitioner Deepak Kumar was duly represented by an Advocate of long standing, having experience both before the trial Court as also this Court. Perusal of trial Court order dated 4.5.2013, evidently reveals that the counsel practices in Shimla and was engaged to conduct the trial at Rampur. 14. Witnesses having resiled from their previous statements is a fact, which has to be considered by the trial Court at the time of decision of the case. Trial Court is duty bound to consider veracity of their testimonies. In any event, no prejudice would be caused to the petitioner for the witnesses not being declared as hostile. 15. I find the witnesses to have been cross-examined on all relevant facts in issue. No case for interference is made out, as it cannot be said that failure to re-examine the witnesses would result into serious prejudice to the petitioner, who has had fair opportunity of trial and was duly represented by counsel and the witnesses were cross-examined in his presence. 16. In the instant case, it cannot be said that no proper evidence was adduced or relevant material was not brought on record due to any inadvertence. Inherent weakness, if any, in the case of prosecution, in fact, would be to the advantage of the accused. 17. 16. In the instant case, it cannot be said that no proper evidence was adduced or relevant material was not brought on record due to any inadvertence. Inherent weakness, if any, in the case of prosecution, in fact, would be to the advantage of the accused. 17. In the instant case, it cannot be said that there is mistake on the part of either party in bringing on record valuable evidence or that there is ambiguity in the testimony of the witnesses so far examined. It also cannot be said that it is essential, for just decision of the case to recall witnesses and re-examine them. 18. Witnesses cannot be re-called on the mere whims, fancies or desires of the accused. What is relevant is the satisfaction of the Court, warranting presence of the witness for just decision of the case. The Court is duty bound to scrutinize the material in its entirety before recording its satisfaction. 19. Further, the Apex Court in Rajesh Talwar and another vs. Central Bureau of Investigation and another, (2014) SCC 628, has highlighted the significance of fair trial, which is the main object of criminal procedure, in the following terms:- "11. This Court in Selvi J. Jayalalithaa & other vs. State of Karnataka & other, WP (Crl.) No. 154 of 2013 decided on 30.9.2013, after referring to its earlier judgments in Smt. Triveniben vs. State of Gujarat, AIR 1989 SC 1335 ; Zahira Habibullah Sheikh (5) vs. State of Gujarat, AIR 2006 SC 1367 ; Capt. Amarinder Singh vs. Parkash Singh Badal & other, (2009) 6 SCC 260 ; Mohd. Hussain @ Julfikar Ali vs. State (Govt. of NCT of Delhi), AIR 2012 SC 750 and Natasha Singh vs. CBI, (2013) 5 SCC 741 , dealt with the issue of fair trial observing:- 28. Fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. In all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the majesty of the law and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings. 29. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only be done but should be seem to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution. 30. Article 12 of the Universal Declaration of Human Rights provides for the right to a fair trial what is enshrined in Article 21 of our Constitution. Therefore, fair trial is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity and is governed by rule of law. Denial of fair trial is crucifixion of human rights." (Emphasis supplied) 20. Fair trial is to be seen not only from the perspective of the accused but also that of the victim and the society. Fair trial would not mean to file application with the sole object of procrastinating the proceedings. In the instant case, there is neither any exigency of situation nor demand of justice, warranting interference by the Court. Also, principle of fair play is inapplicable to the fact situation. 21. Fair trial would not mean to file application with the sole object of procrastinating the proceedings. In the instant case, there is neither any exigency of situation nor demand of justice, warranting interference by the Court. Also, principle of fair play is inapplicable to the fact situation. 21. Judgment rendered by a Coordinate Bench of this Court in CRMMO No. 4039 of 2013, titled as Pritam Chand vs. State of Himachal Pradesh, decided on 9.9.2013, reliance on which is sought, is based on the given fact situation. The counsel for the accused had failed to cross-examine the witness as per the instructions imparted to him, which necessitated change of counsel, who filed application for recall of the witness. Application was allowed by this Court, in view of peculiar facts. In the said case, trial Court had also, on an earlier occasion, recalled a witness on the request by the Public Prosecutor. 22. Thus, in view of the aforesaid discussion, it cannot be said that the order passed by the Court below is perverse, illegal, erroneous, warranting interference. Hence, the petition is dismissed. Petition stands disposed of, so also pending applications, if any. Record of the Court below be sent immediately. Registrar General to ensure compliance. Parties are directed to appear before the trial Court on 11.9.2014.