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2016 DIGILAW 1095 (ORI)

Ghanashyam Hembram v. State of Orissa

2016-11-15

S.K.SAHOO

body2016
JUDGMENT : S.K. SAHOO, J. This is an application under section 482 of Cr.P.C. filed by the petitioner Ghanashyam Hembram challenging the order dated 25.03.2009 passed by the learned Adhoc Addl. Sessions Judge, Fast Track Court, Jajpur in S.T. Case No.218 of 2006 in rejecting the petition under section 311 Cr.P.C. filed by the petitioner to recall P.W.10, P.W.11, P.W.12 and P.W.16 for further cross-examination. It appears from the impugned order that the petition was rejected on the ground that it was filed at a belated stage by the accused-petitioner and that the aforesaid witnesses were examined and cross examined at length and that there is absolutely nothing in the petition which necessitated the petitioner to file such petition at the stage when the prosecution case was closed and the case was posted for accused statement. It was further held that there is nothing in the questionnaire which has been mentioned in the petition under section 311 of Cr.P.C. that those are in any way relevant. 2. Mr. Palit, learned counsel for the petitioner during course of argument produced the deposition copies of P.W.10 Dasma Goipei and P.W.11 Sumitra Goipei, who are the sisters of the deceased Gurubari, P.W.12 Rupendra Goipei, who is the father of the deceased and P.W.16 Champa Goipei, who is the mother of the deceased. On going through the evidence of P.Ws.10, 11, 12 and 16, it appears they have stated mainly about the dying declaration of the deceased. P.Ws.10, 11 and 16 have stated regarding the dying declaration made at the spot whereas P.W.12 stated about the dying declaration made at S.C.B. Medical College and Hospital, Cuttack. It appears that the aforesaid four witnesses have been cross-examined at length by the defence counsel. The application under section 311 of Cr.P.C. which has been annexed as Annexure-2 to this application under section 482 of Cr.P.C. contains the questionnaire for each of the four witnesses and it indicates that the questions are regarding the location of the house of the petitioner, total numbers of rooms in the house of the petitioner, presence of any other persons at the spot and whether the deceased stated anything regarding the occurrence etc. The witnesses like P.Ws.10, 11 and 16 have stated that the house of the accused-petitioner is situated one house apart from their house. The witnesses like P.Ws.10, 11 and 16 have stated that the house of the accused-petitioner is situated one house apart from their house. All the four witnesses have stated that the deceased told before them that since she did not give a pipe to the petitioner as demanded by him, the petitioner set her on fire after pouring kerosene on her. They have further stated that the deceased died at S.C.B. Medical College and Hospital, Cuttack due to burn injuries. On going through the evidence of the witnesses, I find that the questions which were sought to be put to the respective witnesses are either already answered by them or in no way relevant to the facts of the case and therefore, I am of the view that such a petition has been filed after closure of the prosecution case when the case was posted for accused statement just to delay the proceeding. I am further of the view that recalling the aforesaid witnesses for further cross examination is not at all essential for the just decision of the case or to arrive at the truth. The salutary provision under section 311 of Cr.P.C. has been enacted with the object of discovering relevant facts or obtaining proper proof of such facts for just decision of the case and therefore, it must be used judicially and not capriciously or arbitrarily. If such a petition gives unfair advantage to any side, causes serious prejudice or disadvantage to the defence of the accused or it is motivated to fill up the lacuna of either side, the Court should refrain from exercising the power. The paramount consideration for exercising the discretion in entertaining such petition to examine or recall and re-examine a witness being the essentiality for the just decision of the case and for the ends of justice, the Court must be careful enough to see that its action should not result in causing injustice either to the accused or to the prosecution. Trial Courts are not following the mandate of section 309 of Cr.P.C. in conducting day to day trial and granting long adjournments to the respective sides’ very liberally and even entertaining petition under section 311 of Cr.P.C. very casually. Trial Courts are not following the mandate of section 309 of Cr.P.C. in conducting day to day trial and granting long adjournments to the respective sides’ very liberally and even entertaining petition under section 311 of Cr.P.C. very casually. In most of the cases, it is found that the relevant witnesses after examination-in-chief are declined for cross-examination and subsequently petitions under section 311 of Cr.P.C. are being filed for recalling those witnesses for cross-examination by the defence. Attempts are being made in the meantime to gain over the witnesses. Laxity in such matters results in the miscarriage of justice and delays the disposal of the cases. That is what exactly William E. Gladstone has said, “Justice delayed is justice denied. In the case of State of Haryana -Vrs.-Ram Mehar & others reported in (2016) 65 Orissa Criminal Reports (SC) 289, Hon’ble Mr. Justice Dipak Misra speaking for the Bench has observed as follows:- “37…………The decisions which have used the words that the Court should be magnanimous, needless to give special emphasis, did not mean to convey individual generosity or magnanimity which is found on any kind of fanciful notion. It has to be applied on the basis of judicially established and accepted principles. The approach may be liberal but that does not necessarily mean “the liberal approach” shall be the rule and all other parameters shall become exceptions. Recall of some witnesses by the prosecution at one point of time, can never be ground to entertain a petition by the defence though no acceptable ground is made out. It is not an arithmetical distribution. This kind of reasoning can be dangerous”. In view of the ratio laid down in the aforesaid decision and on going through the evidence of the four witnesses, the questionnaire which are mentioned in the 311 Cr.P.C. petition and the stage at which such a petition was filed, I am of the view that no acceptable grounds has been made out by the defence to recall the four witnesses i.e., P.W.10, P.W.11, P.W.12 and P.W.16 for further cross-examination. In my humble opinion, the learned Trial Court has not committed any illegality in rejecting the petition under section 311 of Cr.P.C. filed by the petitioner and therefore, I am not inclined to interfere with the impugned order. In my humble opinion, the learned Trial Court has not committed any illegality in rejecting the petition under section 311 of Cr.P.C. filed by the petitioner and therefore, I am not inclined to interfere with the impugned order. At this stage, the learned counsel for the petitioner submits that the petitioner was on bail and non-bailable warrant of arrest was issued against the petitioner on 08.12.2011 after rejecting the petitions filed by the defence even when the order of this Court directing the Trial Court to adjourn the matter on the application of the petitioner was in force. The learned counsel for the petitioner drew the attention of this Court to the relevant orders passed by the learned Trial Court. Considering the submissions of learned counsel for the petitioner and hearing the learned counsel for the State, I am of the view that if the petitioner appears before the learned Trial Court i.e., Addl. Sessions Judge, Jajpur on or before 26.11.2016, the non-bailable warrant of arrest shall be recalled and the petitioner shall be allowed to continue on previous bail. On the appearance of the petitioner, the date shall be fixed for recording of the accused statement and the petitioner shall also be given an opportunity to adduce the defence evidence. Since the case is of the year 2006, the learned Trial Court shall make every endeavor to conclude the trial by the end of December 2016 by conducting day to day trial. Any observation made in this judgment shall not be construed to be an expression of opinion of the Court on the merits of the case and shall not influence the learned Trial Court in deciding the Sessions Trial. With the aforesaid observations, the CRLMC application is disposed of.