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2016 DIGILAW 115 (JHR)

Sanjay Kumar Mandal v. State of Jharkhand

2016-01-14

RONGON MUKHOPADHYAY

body2016
ORDER : 1. Heard the parties. 2. In this application, the petitioner has prayed for quashing the order dated 30.01.2014, passed by the learned Principal Sessions Judge, Sahibganj in S.C. Case No. 204A/2005 (Borio Girwarbari P.S. Case No. 43 of 2004), whereby and whereunder the evidence of PW-1-Nilam Devi @ Nimo Devi and PW-2-Urmila Devi had been expunged. 3. The prosecution story based upon the fardbeyan of the informant-Urmila Devi is to the effect that on 22.03.2004, her step mother in law with the help of her step brother in law administered poison to her son and when he was taken to the doctor, he was declared dead. 4. Upon investigation, chargesheet was submitted by the police against both the accused persons for the offence under sections 302/328/34 of the Indian Penal Code. Submission of the chargesheet led to taking of cognizance by the learned court below and thereafter the case on being committed to the court of sessions, charge was framed against both the accused persons on 15.12.2005 under section 302/328 of the Indian Penal Code, to which the accused persons pleaded not guilty and claimed to be tried. 5. In course of examining the witnesses, an application was filed by the petitioner before the learned trial court claiming himself to be a juvenile on the date of occurrence and accordingly the case of the present petitioner was split up and he was directed to appear before the Juvenile Justice Board, Dumka for determination of age. Subsequent thereto, rest of the prosecution witnesses were examined and the statement of the accused was recorded under section 313 Cr.P.C. Vide judgment dated 4.10.2007, the accused was convicted for the offence punishable under section 302/328 of the Indian Penal Code and was accordingly sentenced. On 27.08.2012, the petitioner was declared a major on the date of occurrence and accordingly he was directed to appear before the learned trial court on 5.9.2012. Thereafter on 21.03.2013, fresh charges were framed against the petitioner under section 302/328 of the Indian Penal Code and on 23.05.2013 and 14.06.2013, two witnesses were examined as PW-1 and PW-2 namely Smt. Nilam Devi and Urmila Devi respectively. Thereafter on 21.03.2013, fresh charges were framed against the petitioner under section 302/328 of the Indian Penal Code and on 23.05.2013 and 14.06.2013, two witnesses were examined as PW-1 and PW-2 namely Smt. Nilam Devi and Urmila Devi respectively. An application was preferred by the prosecution on 16.12.2013, in which a prayer was made for expunging the deposition of PW-1 and PW-2 recorded in connection with S.C. No. 204A/2005 and upon hearing both sides vide impugned order dated 30.01.2014, the learned Principal Sessions Judge, Sahibganj had allowed the application filed on behalf of the prosecution and had directed for expunging the deposition of PW-1 and PW-2. 6. Heard Mr. Jitendra S. Singh, learned counsel for the petitioner and Mr. Ram Prakash Singh, learned counsel for the State. 7. Mr. Jitendra S. Singh, learned counsel for the petitioner, has assailed the impugned order dated 30.01.2014 by submitting that the impugned order is not in accordance with law. It has also been submitted that when the charges were framed against the petitioner and two witnesses were examined, the prosecution did never object but after expiry of a considerable length of time, the prosecution has filed an application for expunging the deposition of PW-1 and PW-2. Learned counsel for the petitioner has also referred to Section 33 of the Evidence Act and has submitted that in view of the conditions enumerated in the said provision, it was necessary to consider the evidence of PW-1 and PW-2 more-so-ever, when fresh charges were framed against the petitioner. Learned counsel has also submitted that there is no provision either in the Code of Criminal Procedure or in the Evidence Act to expunge the evidence of witness and if at all there was a conflict in the evidence of PW- .-1 and 2 vis-à-vis, their evidence given in the earlier trial, the learned trial court was always at liberty to ignore the evidence given in subsequent trial. It has also been submitted that in the facts and circumstances, enumerated above, the impugned order dated 30.01.2014 deserves to be quashed and set aside and the learned trial court be directed to consider the evidence adduced by PW-1 and PW-2 in S.C. No. 204A/2005 to arrive at a just decision in the case. 8. Mr. It has also been submitted that in the facts and circumstances, enumerated above, the impugned order dated 30.01.2014 deserves to be quashed and set aside and the learned trial court be directed to consider the evidence adduced by PW-1 and PW-2 in S.C. No. 204A/2005 to arrive at a just decision in the case. 8. Mr. Ram Prakash Singh, learned counsel for the State, on the other hand has submitted that there was no question of framing afresh charges against the petitioner and examining the witnesses, who have already been examined in the earlier trial. It has been submitted that on account of inadvertence on the part of the prosecution, the charges were framed afresh, although the charges framed in the earlier trial was in the presence of the petitioner and PW-1 and 2 of S.C. No. 204A/2005 were also examined, cross-examined and discharged in presence of the petitioner and therefore the learned trial court has rightly expunged the deposition of PW-1 and PW-2. 9. The facts, which have been narrated in the application under section 482 Cr.P.C. reveals that when the trial was proceeding and some of the witnesses were examined, the application was preferred by the petitioner claiming himself to be a juvenile and pursuant to the same, his case was referred to the Juvenile Justice Board, Dumka for the purposes of enquiry. It is not the case of the petitioner that PW-1 and PW-2 in S.C. No. 204A/2005 were examined in his absence in the earlier trial and therefore the question of not giving a fair trial to the petitioner has not been raised in the present application. The only contention of learned counsel for the petitioner seems to stem from the fact that once charges have been framed afresh, all the witnesses had to be examined and there had to be a full fledged trial to prove the guilt of the petitioner. The prosecution had admitted the fact that the charges, which were framed after the petitioner was sent back to face trial on being found to be a major on the date of occurrence was on account of inadvertence. The facts of the present case clearly reveals that there was no occasion on the part of the prosecution to frame charge afresh against the petitioner and thereafter conduct a full fledged trial. The facts of the present case clearly reveals that there was no occasion on the part of the prosecution to frame charge afresh against the petitioner and thereafter conduct a full fledged trial. PW-1 and 2 were examined, cross examined in the earlier trial as PW-1 and PW-4 and the petitioner had the occasion to cross examine those witnesses. 10. Learned counsel for the petitioner had relied much upon Section 33 of the Evidence Act and for the purposes of deciding the case at hand, the same is quoted hereunder:- "33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated-Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, of if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided:- That the proceeding was between the same parties or their representatives in interest; That the adverse party in the first proceeding had the right and opportunity to cross-examine; That the questions in issue were substantially the same in the first as in the second proceeding. 11. Sections 33 deals with relevancy of certain evidence for proving in subsequent proceeding, the truth of facts stated therein and the same would come into being when a witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or expenses which the Court considers unreasonable. 12. None of the said factors are available in the instant case and in such circumstances Section 33 of the Evidence Act having no relevancy with the facts and circumstances of the case, the argument of learned counsel for the petitioner in that context is discarded. 13. 12. None of the said factors are available in the instant case and in such circumstances Section 33 of the Evidence Act having no relevancy with the facts and circumstances of the case, the argument of learned counsel for the petitioner in that context is discarded. 13. Witnesses could be re-examined if they require explanation of certain matters referred to in the cross-examination or if a new matter is introduced in re-examination in terms of Section 138 of the Evidence Act. The position in the present case is quite different as neither there has been requirement of any explanation of any matter related to the cross-examination or any matter has cropped up in order to give permission for re-examination of the witnesses and in absence of either which can be the only basis for examination of PW-1 and 2, considering the facts and circumstances of the present case, the prosecution had rightly filed the application for expunging the deposition of PW-1 and 2, which was subsequently allowed by the learned trial court by order dated 30.01.2014. PW-1 and 2 were not reexamined but were examined afresh and it has rightly been held by the learned trial court agreeing with the prayer made by the prosecution to expunge the deposition of PW-1 and PW-2. 14. Thus, there is no illegality or infirmity in the order dated 30.01.2014, passed in S.C Case No. 204A/2005 by the learned Principal Sessions Judge, Sahibganj. This application having no merit is hereby dismissed.