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Madhya Pradesh High Court · body

2014 DIGILAW 1637 (MP)

SONERAM RATHORE v. STATE OF M. P.

2014-12-09

S.K.PALO

body2014
ORDER : S.K. PALO, J. 1. This revision under Section 397 read with Section 401 of Cr.P.C. has been filed challenging the legality, validity and propriety of the impugned order dated 31.10.2014 passed by the IIASJ, Sabalgarh in ST No. 63/2013, by which the application under Section 311 of Cr.P.C. for re-calling the witness has been rejected. The facts just necessary for disposal of the case are that; the petitioner is accused in ST No. 63/13 and facing charge under Section 376 of IPC During the trial, PW-1, prosecutrix was examined on 17.5.2013. PW-2 Darshan was examined on 18.6.2013, PW-3, Dr. Archna has been examined on 19.6.2013. 2. The petitioner/accused filed an application under Section 311 of Cr.P.C. dated 2509/2014 which was decided by the impugned order dated 31.10.2014 by the trial Court. The petitioner accused submitted that during the examination of prosecutrix some important questions could not be asked by Advocate Shri A.K. Shrivastava. Therefore, her cross examination could not be conducted properly and effectively. The mistake committed by the counsel has to be corrected. Now, the petitioner accused has changed his counsel. Now, the petitioner is represented by Shri Puran Singh Yadav, Advocate. Therefore, the prosecutrix be recalled for further cross examination. It is also stated that, because of altercation regarding partition, the prosecutrix and her husband Darshan lodged reports on 12.12.2012 and on 5.12.2012 at Police Station, Sabalgarh, on the basis of which Crime No. 129/12 was registered for the offence under Sections 151, 107, 163) of IPC and on 5.12.2012 the petitioner accused was arrested from his house by the Police Sabalgarh. He was released on bail on 6.12.2012 at 7 PM from the Jail Sabalgarh. Therefore, on this point questions could not be asked to the prosecutrix. The alleged incident said to have taken place on 6.6.2012. The petitioner, therefore, prayed for re-calling the prosecutrix for further cross examination. 3. The learned trial Court vide its impugned order rejected the prayer, stating that enough opportunities were granted to the accused petitioner and permission cannot be granted for further cross examination of prosecutrix PW-1 hence, application is rejected. 4. The learned counsel for the petitioner argued that section 311 of Cr.P.C. provides re-calling of the witness, it is essential for just decision of the case, re-call and re-cross examination of prosecutrix specifically mentioned in the application can prove him innocent. 4. The learned counsel for the petitioner argued that section 311 of Cr.P.C. provides re-calling of the witness, it is essential for just decision of the case, re-call and re-cross examination of prosecutrix specifically mentioned in the application can prove him innocent. Therefore, the impugned order be set aside and it be directed to the Trial Court to recall the prosecutrix for re- cross-examination. 5. On behalf of the State, learned PL submitted that the order impugned is proper in the eyes of law, proper opportunity were provided to the petitioner to cross examination the prosecutrix. Prosecutrix (PW-l) was cross examined on 17.6.2013. Subsequently, again on 21.5.2013 the prosecutrix was elaborately cross examined by the learned counsel Shri Anil Kumar Shrivastava. Therefore, enough opportunities were granted to the petitioner. Case was further adjourned for examination of accused and at the belated stage such application was filed which is intended to fill up the lacuna. That being so, the impugned order does not call for any interference. 6. Section 311 of Cr.P.C. Provides for recalling of witness at any stage of the trial, to prevent the failure of justice and gives wide discretion to the Court. The power conferred under Section 311 of Cr.P.C. should be invoked by the Court only for the ends of justice. 7. This provision to recall witness or to re examine or further cross examination can be used if it is necessary in the interest of justice. The same has to be exercised after taking into consideration the facts and circumstance of each case. 8. Where the prosecution witness is over, an application by the accused for recalling the prosecution witness for further cross examination was nothing but abuse of process of law, the rejection of the application by the Court was held proper in the case of Popatlal Jethabhai Shah Vs. State of Maharashtra, 2002 Cr.L.J. 794. The Hon'ble Apex Court in State of Rajasthan Vs. Daulat Ram, AIR 1980 SC 1314 has observed that; "The discretion cannot be allowed to be used to fill up the gaps in the evidence of a party who seeks recourse to the use of this provision". 9. State of Maharashtra, 2002 Cr.L.J. 794. The Hon'ble Apex Court in State of Rajasthan Vs. Daulat Ram, AIR 1980 SC 1314 has observed that; "The discretion cannot be allowed to be used to fill up the gaps in the evidence of a party who seeks recourse to the use of this provision". 9. In the present case also after a lapse of six months, when the case was proceeded for examination of accused to fill up the lacuna, the application has been filed under Section 311 of Cr.P.C. No application which will tantamount to the filling in the lacunae of the case could be permitted. Therefore, the evidence being sought to be introduced by the defense after a lapse of six months to fill up lacuna is not permissible. Otherwise also the petitioner accused can enter into its defense and substantiate the same by evidence relating to release from the custody on 6.12.2012 by filing proper documents. Therefore, no prejudice will be caused to the petitioner accused. 10. In the case of Popatlal Jethabhai Shah (supra), it is held that, where application for recalling of the prosecution witness was filed on the ground that the new counsel had been engaged, as the earlier counsel could not elicit some material contradictions, the application not being bona fide was disallowed. In view of the above circumstance and looking to the legal aspects of the case, the petition sans merits and is hereby dismissed. Dismissed.