Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 59 (MP)

Mohan Singh v. State of M. P.

2015-01-14

ALOK VERMA

body2015
ORDER 1. This application under section 482 of CrPC is directed against order passed by the learned Additional Sessions Judge, Mahidpur, District Ujjain in Session Trial No.342/2010 dated 16.1.2014 where by the learned Additional Sessions Judge allowed identification memo to be exhibited, after completion of cross-examination of prosecution witness Vallabh Gupta (PW1). 2. Brief facts giving rise to this application are the prosecution witness Vallabh Gupta was examined in Session Trial No.342/2010. His cross-examination was completed on 16.1.2014 and after completion of his cross-examination after para 37, a note was appended by the trial Judge, in which the learned Additional Sessions Judge allowed identification memo to be exhibited on the ground that is was inadvertently remained to be exhibited and it was praped by the Additional Public Prosecutor that it remained to be exhibited during the examination-in-chief, as it was not properly placed in the record. On this ground, as its was not properly placed in the record. On this ground, he sought permission of the Court to exhibit the document during the re-examination and then the learned Additional Sessions Judge opined that in the interest of Justice, the fault on the part of the prosecution should not be allowed to result in failure of justice and, therefore, the permission was granted, After this, the prosecution in para 38 produced to exhibit the identification memo as Ex.P-8 and, thereafter, the learned counsel for the defence was allowed to cross-examine the witness on identification memo and from para 39 to 42 in detail, the witness was cross-examined the note appended by the learned Additional Session Judge after para 37 in the deposition sheet may be reproduced hereunder for benefit of proper consideration. ^^uksV%& ,-ih-th- }kjk iqu% ijh{k.k esa lk{kh ls f’kuk[rh eseks izekf.kr djk;s tkus dk iz;kl fd;k tkus ij cpko vf/koDrk dh vkifÙk gS fd iqu% ijh{k.k dk {ks= lhfer gS vkSj vfHk;kstu iqu% ijh{k.k esa viuh =qfV lq/kkj ugha dj ldrkA vfHk;sktu dks vkosnu nsuk pkfg, vkSj bl ij vfHk;qDrx.k dk i{k j[kk tkuk pkfg,A ogha ,-ih-th- dk dguk gS fd iwoZ eas eq[; ijh{k.k ds nkSjku nLrkost vkxs&ihNs yx tkus ds dkj.k =qfVo’k os lk{kh ls f’kuk[rh iapukek izekf.kr ugha djk lds Fks] ijUrq mUgsa mDr rF; dk Kku gksus ij U;k;ky; dks bl laca/k esa lwfpr fd;k FkkA vr% f’kuk[rh eseks izekf.kr djk;s tkus dh vuqefr nh tkosA nksuksa i{kksa dks lquus ds ckn U;k; dh ea’kk dks ns[krs gq, vfHk;kstu dh =qfV ds fy, U;k; fu”Qy u gks bl Hkkouk ds lkFk lk{kh ds iqu% ijh{k.k esa nLrkost ds izek.khdj.k dh vuqefr iznku dh tkrh gSA cpko i{k dks iqu% izfrijh{k.k dk vfèkdkj jgsxkA** 3. The learned counsed for the defence relied on judgment of Pannayar v. State of Tamil Nadu (2010)2 SCC (Cri) 1480, (2009)9 SCC 152 in which the Hon’ble Supreme Court observed that purpose of re-examination is only to get clarification of some doubts created in cross-examination. One cannot supplement the examination-in-chief by way of re-examination and for the first time, starte introducing totally new facts, which have no concern with the cross-examination. He particularly cites para 26 of the judgment which is as under :- “25. ................. 26. “We do not know that was the Public Prosecutor doing at the time of the examination-in-chief and why he did not confront the witness on these ornaments. We do not know as to how the trial Court permitted these questions in re-examination. The purpose of the re-examination is only to get the clarifications of some doubts created in the cross examination. One cannot supplement the examination-in-chief by way of a re-examination and for the first time, start introducing totally new facts, which have no concern with the cross examination. The trial Court has obviously faulted in allowing such a re-examination. Be that as it may, even if we accept that the trial Court was justified in allowing the re-examination, the evidentiary value of the contents of the re-examination, in our firm opinion, is nil. 27. ............................................... ” 4. In particular he placed emphasis on the last 3 lines of the para i.e. ‘....... Be that as it may, even if we accept that the trial Court was justified in allowing the re-examination, the evidentiary value of the contents of the re-examination, in our firm opinion, is nil. 27. ............................................... ” 4. In particular he placed emphasis on the last 3 lines of the para i.e. ‘....... Be that as it may, even if we accept that trial Court was justified in allowing the re-examination, the evidentiary value of contents of re-examination, in our firm opinion, is nill’. To understand proper impact of this observation by Hon’ble Court earlier paragraphs of the judgment may be looked into. The fact of the case before the Hon’ble apex Court was that wife of PW1 Subbiah was alleged to have been murdered by the appellant Pannayar. According to the prosecution story in that case she went to answer the call of nature, when the appellant followed her. He murdered her and removed the ornaments from her body. He was arrested after 12 days of the incident and the ornaments were seized from his possession. The Supreme Court in earlier paragraphs, after examining the statements of all other prosecution witnesses observed that it was not proved that the ornaments belong to the deceased and she was wearing it at the time of her murder. In light of above observation if we read the last 3 lines of the para, we understand its real import that even if permission granted by the Court was taken to be correct, then those ornaments, as it was already held that they did not belong to the deceased had no evidentiary value. 5. Reverting back to the present case, it is to be seen whether the permission granted by the Court was proper or it requires any interference by this Court. Para 3 of section 138 of Evidence Act provides for direction of re-examination. The section may be reporduced here :- “138. Order of examinations :- ............................................................... ................................................................................................. Direction of re-examination : - The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.” 6. It may be seen that the third para of the section has two limbs :- first is directed when explanation is required for any matter referred to in cross-examination. It may be seen that the third para of the section has two limbs :- first is directed when explanation is required for any matter referred to in cross-examination. In such cases, normally there is no right of cross-examination given to the defence. However, the second limb of section relates to new matter, in which permission may be granted by the Court. In such cases it is incumbent on the trial Court to give opportunity of cross-examination to the defence. As stated earlier, opportunity was granted to the defence in this case. 7. This apart under section 311 of CrPC the second limb of the section is mandatory when re-examination of a person is essential for just decision of the case. Also section 165 of the Evidence Act gives ample power to the trial Judge, to call any document and exhibit the same during the trial. In the present case, the identification memo was part of charge-sheet. The defence counsel was aware of the existence of the document which was already on record. Merely due to the lapse of the prosecutor, if such document is not allowed to be exhibited, it may result in failure of justice, which is not proper. Especially in a State like Madhya Pradesh where prosecution officers are a neglected lot and have no space to sit and prepare for their performance in Court. They appear unprepared and such lapse are very common before the sub-ordinate Courts. 8. In my opinion, no irregularity was committed by the trial Judge, while permitting the identification memo to be exhibited and the principles laid down by Hon’ble Supreme Court in case of Pannayar (supra) do not apply in the present case. 9. This revision, therefore, is devoid of any merits and liable to be dismissed and dismissed accordingly.